State v. Wilder

Decision Date24 February 2000
Citation2000 ME 32,748 A.2d 444
PartiesSTATE of Maine v. Lawrence WILDER.
CourtMaine Supreme Court

Stephanie Anderson, District Attorney, Julia Sheridan, Asst. Dist. Atty. (orally), Stephen Dassatti, Asst. Dist. Atty, Portland, for state.

Caroline Gardner (orally), Portland, for defendant.



[¶ 1] This appeal requires identification of the border between a parent's justified use of physical force to control a child and a criminal assault. Lawrence Wilder appeals from a decision of the Superior Court (Cumberland County, Perkins, A.R.J.), which affirmed a judgment of the District Court (Portland, Bradley, J.) finding him guilty of three counts of assault, 17-A M.R.S.A. § 207(1) (1983) (Class D), on his nine-year-old son.1 Wilder contends that the District Court: (1) misapplied 17-A M.R.S.A. § 106(1) (1983) to disregard the parental control justification for his acts; (2) erred in admitting hearsay testimony by a police officer as a prior consistent statement; (3) improperly admitted and considered testimony regarding his prior gross sexual assault conviction; and (4) imposed a sentence greatly disparate from the prosecutor's pretrial plea offer. Because the evidence in this case is insufficient to support the convictions beyond a reasonable doubt when 17-A M.R.S.A. § 106(1) is properly applied, we vacate the convictions and remand for entry of a judgment of acquittal.


[¶ 2] At the time of trial, Lawrence Wilder and Bernice Landry had been divorced for eight years. They have a daughter and a son from their three-year marriage. Pursuant to the divorce, Wilder had responsibility for his son on many weekends and during some school vacations, a pattern that had continued for about a year. The events at issue in this case arose during the April 1998 school vacation when the son, then nine years old, stayed with his father for a week. Previous times when the father and son were together had apparently gone without significant incident.

[¶ 3] The son was the only witness to the events who testified at trial. His testimony, regarding each of the three incidents, was as follows:

A. First Charge

[¶ 4] Regarding the first assault charge, the son testified: "We were playing a little board game and I was talking too much, so he turned around and grabbed me on the shoulder and told me to shut up." The incident was then described, in the boy's testimony, as follows:

Q. Now, you said that he told you to shut up. What were you saying?
A. I was talking too much.
Q. Do you talk a lot?
A. Yes.
Q. Does that annoy people sometimes?
A. Yes.
Q. Were you being fresh to your dad?
A. No.
Q. Were you saying anything bad to him?
A. No.
Q. Okay. And when you say he grabbed you, can you show the Judge where he grabbed you on your body?
A. I don't remember what side it was.
Q. What part of your body was it?
A. My shoulder.
Q. Did he grab you with one of his hands or both of his hands?
A. Just one.
Q. Okay. How did it feel when he grabbed you?
A. He-he squeezed so it kinda hurt.
Q. Okay. How long did he squeeze?
A. Not for long.
Q. Okay. What did you do when he squeezed you?
A. I just had to sit there.
Q. Okay. Did you cry?
A. No.
Q. Did you say anything to him?
A. No.
Q. How did it make you feel?
A. Angry.
Q. Mmhmm. Did you—did you show him that you were angry in any way?
A. No.
Q. Did you notice whether you had any marks on your shoulder from that?
A. I knew I may have something on there, but I didn't know for sure I would have a bruise on there.

[¶ 5] Describing this first incident in its brief, presumably in a way most favorable to its position, the State asserts that, "[The boy] was talking too much, although he was neither being fresh or saying anything bad to appellant, and appellant grabbed him on the shoulder and told him to shut up. Appellant squeezed [his son] hard enough to hurt him."

B. Second Charge

[¶ 6] The second assault charge is based on the following testimony about an event which occurred "a couple days later." The son testified: "We were still sitting in the living room, and we were playing a game again. And I was still talking too much, and he just grabbed me again.... [H]e grabbed me in the same shoulder."

[¶ 7] The incident was further described in the following colloquy:

Q. Okay. When he grabbed you, did he grab you with one hand or two hands?
A. One hand.
Q. Was it the same as the first time it happened?
A. Yes, it was.
Q. And it was the same spot?
A. Yes.
Q. How did it feel?
A. It made me angry and kinda sad that he had to take his aggression out on me.
Q. Okay. Did it hurt you?
A. Yes, it did.
Q. Was it—did it hurt more or less than the first time it happened?
A. It hurt a little bit more since he did it in the same spot.

[¶ 8] Asked later: "What did you do after he grabbed you?" The son responded: "We just started playing the game again."

[¶ 9] In its brief, the State describes the second assault charge as follows: "Once again, when [the boy] was talking too much, appellant grabbed him on the same shoulder. [The boy] was not mouthing off and was neither rude nor fresh. This time the pain was greater since appellant grabbed [him] in the same spot."

C. Third Charge

[¶ 10] The third assault charge was based on the following testimony:

Q. Okay. Was there another incident that happened while you were at your dad's?
A. Yes.
Q. Can you talk about that?
A. It was kinda at the last quarter of the time I spent with my dad. And we were on Martin Point Bridge, on the Portland side, and we were parked waiting for the rain to stop to go fishing. And I was talking about a movie that we saw the night before that. And he said I was over exaggerating, so he grabbed me on the—he put—grabbed me on the mouth—over my mouth and said "Shut up." And he squeezed like he usually—like he did the first two times—enough to make a bruise.
Q. Okay. How did it feel when he squeezed your mouth?
A. It made me angry, and it hurt.
Q. Can you show the Judge how he grabbed you with your own hand? Can you show where he put his hand?
A. Well, he reached over and he put his hand like that.
Q. Okay. And you said that it bru— your face bruised?
A. Yes.
Q. Where were the bruises?
A. The bruises were—there were four fingers over this side and one big thumb over there.
Q. How—when did you first notice those bruises?
A. I didn't notice those bruises. My mother pointed them out to me.
Q. After you got home?
A. Yes.

[¶ 11] Describing the third assault charge in its brief, the State asserts: "Appellant claimed that [his son] was exaggerating, then grabbed [the boy] on his mouth, squeezed and said[,] `Shut up.'"

[¶ 12] Thus, in each of the three incidents, when Wilder "grabbed" his son, he caused transient pain and minor, temporary bruises.

[¶ 13] When the son returned home he was questioned by Bernice Landry, as was her regular practice, as to whether he had been hit by his father. She also asked him about a bruise on his face. Initially the boy gave his mother another explanation for the bruise because he was concerned that Landry would respond to the bruises by attempting to have Wilder jailed; "I thought my mom would put him in jail."

[¶ 14] Responding to her observations, Landry called the Department of Human Services, went to Westbrook Hospital, contacted the Cumberland Police, and reported the events to a school counsellor. The incident was investigated by a Cumberland police officer, who took a report from the boy. The matter was then presented to the District Attorney's Office, and prosecution on three counts of assault was initiated.

[¶ 15] The case was tried in the District Court in November 1998. At the close of the State's case, and again at the close of all of the evidence, the defense requested acquittal arguing that the justification for parents using physical force to prevent or punish misconduct by their children, 17-A M.R.S.A. § 106(1),2 prevented conviction by proof beyond a reasonable doubt on the available evidence.

[¶ 16] In its findings at the close of trial, the court concluded that the elements of assault—intentionally, knowingly, or recklessly causing bodily injury—had been proven beyond a reasonable doubt for each of the three incidents. The court also ruled that the parental control justification "does not apply here." The court determined that:

There is no evidence of misconduct in this record, or a reasonable inference that could be drawn from the evidence in this record as to misconduct. I don't find that excessive talking and exaggerating, in and of themselves, without some further evidence, would rise in any way to a level of misconduct as it's plainly defined.

[¶ 17] The court found Wilder guilty on each charge. He was sentenced on one charge to 364 days in the county jail with all but 90 days suspended and a year's probation. On the other two charges he was given a consecutive sentence of 364 days, all suspended and a year's probation, for a total sentence of 728 days, all but 90 days suspended and 2 years probation.3 One of the conditions of probation, also a bail condition, was that Wilder have no contact with his son. The record indicates that the sentence was motivated, in part, by the court's concern that Wilder had been convicted of gross sexual assault against a daughter a number of years in the past.

[¶ 18] This appeal followed Wilder's unsuccessful appeal to the Superior Court.


[¶ 19] Where the Superior Court acts as an intermediate appellate court, we review directly the judgment of the District Court. See Barclay v. Eckert, 2000 ME 10, ¶ 8, 743 A.2d 1259

; Johnson v. Smith, 1999 ME 168, ¶ 5, 740 A.2d 579, 581.

[¶ 20] A parent has a fundamental liberty interest in maintaining a familial relationship with his or her child. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (19...

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