State v. Erlon Ricker
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 76
Docket: 	Ken-00-506
Argued:  	April 10, 2001
Decided:	May 9, 2001

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

STATE OF MAINE

v.

ERLON RICKER

CALKINS, J.

	[¶1]  Erlon Ricker appeals from the judgment entered in the Superior
Court (Kennebec County, Marden, J.) following a jury verdict finding him
guilty of three counts of unlawful sexual contact (Class C), 17-A M.R.S.A.
§ 255 (Supp. 2000), and three counts of gross sexual assault (Class A), 17-A
M.R.S.A. § 253 (Supp. 2000).  Ricker argues that the court erred in
excluding certain character evidence and in admitting prior consistent
statements of the victim.  Ricker also appeals his sentence contending that
the court improperly considered hearsay and gossip contained in the pre-
sentence report.  We affirm the conviction and the sentence.

I.  BACKGROUND

	[¶2]  Ricker was indicted for unlawful sexual contact and gross sexual
assault on his niece.{1}  The offenses occurred when the niece was six to eight
years old and Ricker was sixty-three to sixty-five years old.{2}  At that time the
niece lived with her father next door to Ricker and his wife.  At trial the
niece was eleven years old, and she testified in detail about the sexual abuse
inflicted upon her by Ricker.  The niece was six years old when she first
reported the sexual abuse to her mother while visiting her in New Jersey. 
Although the sexual abuse was reported to the Department of Human
Services (DHS) and to the niece's father, Ricker's abuse of the niece
continued until she moved to live with another relative when she was eight
years old.  Following a three-day trial, the jury found Ricker guilty on all
charges:  three counts of unlawful sexual contact and three counts of gross
sexual assault.

II.  EVIDENCE

A.	Reputation

	[¶3]  Rule 608(a) of the Maine Rules of Evidence allows a party to
attack the credibility of a witness through evidence of the witness'
reputation for truthfulness or untruthfulness.  We review the exclusion of
reputation evidence for abuse of discretion.  State v. Mazerolle, 614 A.2d 68,
73 (Me. 1992).  Ricker contends that the trial court erred in refusing to
allow three witnesses to testify about the niece's reputation for
untruthfulness.  The court heard the testimony of two witnesses outside the
presence of the jury, and an offer of proof regarding the testimony of a third
witness.  The court ruled that the three witnesses would not be permitted
to testify to the jury regarding the niece's reputation.
	[¶4]  The first proposed reputation witness was the niece's father.  He
testified that three or four years previously he had spoken to a school
teacher who told him of instances when his daughter made up stories. 
Although he testified that he had spoken with school counselors about his
daughter, this testimony amounted to nothing because he could not
remember what they told him.  The father also spoke with a woman who
worked at a crisis center who told him about occasions when the daughter
was less than truthful.  The father spoke with several family members about
his daughter's truthfulness, and they told him that she made up stories at
times.  
	[¶5]  The second witness was the father's sister who said that the
consensus of family members was that the niece tells lies and stories and
that she has a reputation of being a "story maker."  The family members to
which the witness referred consisted primarily of the witness' immediate
family:  her husband, mother, daughter, granddaughter, brother and his
wife, and sister and her husband.  The third witness was the father's
brother, and the offer of his testimony demonstrated that it would be
substantially the same as the testimony of the second witness.
	[¶6]  To be admissible, the evidence concerning a witness' reputation
for truthfulness "must embody the collective judgment of the community
and be derived from a group whose size constitutes an indicium of inherent
reliability."  Mazerolle, 614 A.2d at 73 (quotation marks and citations
omitted).  Evidence of reputation is considered reliable only if the
community holding the opinion of reputation is sufficiently large.  Id.  If the
group is too insular, its opinion of the witness' reputation for truthfulness
may not be reliable because it may have been formed with the same set of
biases.  State v. Cyr, 2001 ME 35, ¶ 6, 767 A.2d 307, 310.  
	[¶7]  While it may be that a child's community is smaller than an
adult's community, the child's community must be sufficiently numerous for
the opinion of reputation to be reliable, and the members of that community
must have had sufficient contacts with the child to justify an opinion of
reputation.  See Commonwealth v. Philippa P., 2001 WL 64650, at *4 (Mass. 
App. Ct. 2001).  Here, the only evidence consists of a reputation for
untruthfulness among family members.  The father's testimony about the
opinions of a teacher and a crisis center worker must be discounted because
the testimony was not about the niece's reputation, but consisted of the
statements of these two people about specific occasions when the niece had
not been truthful.  Thus, the only evidence of the reputation of the niece is
her reputation among certain members of the father's family.
	[¶8]  The burden is on the proponent of reputation evidence to satisfy
the foundational requirements of such evidence including the requirement
that the community be sufficiently large and diverse to give the reputation
evidence the reliability required for admissibility.  In this case there was
evidence that the niece was known by a fairly large community.  She was
eleven years old at the time of trial; she had lived with several different
relatives; and she had attended at least two different schools.  Given the
evidence that the niece's community consisted of more than a segment of
her father's family, it was not an abuse of discretion for the court to have
concluded that the requisite foundation of community had not been
established.
 
B.	Prior Consistent Statement

	[¶9]  The other evidentiary issue raised by Ricker is his contention
that the trial court erred in allowing testimony of the niece, a police officer,
and a DHS employee regarding prior consistent out-of-court statements of
the niece.  The prior consistent statements at issue are the niece's reports
to others that Ricker had abused her.  No objections were made at trial to
any prior consistent statement, and, therefore, we review for obvious error.
	[¶10]  Prior consistent out-of-court statements by a witness who
testifies at trial, such as the niece in this case, are admissible for the truth
contained in the statement when the statement rebuts a claim of recent
fabrication or improper influence or motive.  M.R. Evid. 801(d)(1).  All other
out-of-court statements by a witness which are consistent with her in-court
testimony are hearsay, and unless they come within an exception to the
hearsay rule, are inadmissible to prove the truth contained in the statement. 
However, such other consistent out-of-court statements may be admissible
for purposes other than for the truth asserted in the statement. 
	[¶11]  One hearsay exception that allows the report of sexual abuse to
be admitted substantively is the "first complaint" exception.  See State v.
Palmer, 624 A.2d 469, 471 (Me. 1993).  This exception is "very narrow and
allows only the bare fact of the complaint to be admitted . . . ."  State v. Joel
H., 2000 ME 139, ¶ 23, 755 A.2d 520, 526.  In the first instance of which
Ricker complains, the niece was asked on direct examination:  "What you've
told us here today, is that the first time you told anybody about what
happened?"  She responded:  "No."  In response to additional questions she
said that she told many people but told her mom first, told her
"everything," and she was six years old when she first told.  These
responses may arguably exceed the "first complaint" exception because the
niece said she told her mom "everything."  If the admissibility of these
responses was error, it was not obvious error affecting a substantial right of
Ricker.  The defense strategy appears to have been based on the fact that
the niece reported the sexual abuse when she was six years old, that Ricker
was notified of the report, and that he did not have access to the niece after
that report.  Thus, this report of abuse was not a fact that Ricker wanted
kept from the jury, and his testimony contains several references to this
report.
	[¶12]  We have reviewed the context in which the statements of the
police officer and DHS worker, about which Ricker now complains, were
made, and we conclude that the statements were admissible.  In these
instances the testimony regarding the niece's report of sexual abuse was not
offered for the truth of what was contained in the report; rather it was
offered only to place the questions and testimony in context.  The police
officer testified that he interviewed Ricker about the niece's report and told
Ricker that the niece had given details about touching and licking her
vagina, attempting sexual intercourse, and masturbating in her presence. 
The police officer testified to Ricker's reaction to these allegations. 
Ricker's responses to the allegations would not make sense without the
context in which his responses were made.  The DHS worker, in response
to a question as to what role she played for the family of the niece, testified
that "based on the allegations that [the niece] had been abused by an uncle,
it was my job to find out if the father was able to keep [the niece] from
having unsupervised contact with the uncle."  The testimony of the police
officer and the DHS worker demonstrates that their references to the
niece's report of sexual abuse were only to give context to their testimony
and were not offered for the truth of the allegations in the report.  

III.  SENTENCE

	[¶13]  Following the verdict of guilty, the court ordered the probation
officer to prepare a pre-sentence report.  See M.R. Crim. P. 32(c).  The
court also ordered the State Forensic Service to perform a forensic
evaluation.  See 34-B M.R.S.A. § 1212(2)(D) (Pamph. 2000).  After both the
forensic evaluation and the pre-sentence report were filed with the court
and copies furnished to Ricker's attorney, the court held the sentencing
hearing.  
	[¶14]  On the first count of gross sexual assault, Ricker was sentenced
to twelve years imprisonment with all but three years suspended and six
years of probation.  On the second count of gross sexual assault he was
sentenced to three years imprisonment, all suspended, with six years of
probation, consecutive to the first count.  The sentence of three years
imprisonment on the third count of gross sexual assault was suspended, and
no probation was imposed.  On the three counts of unlawful sexual contact,
the court imposed sentences of one year imprisonment, concurrent with
the sentence on the first count of gross sexual assault.  The cumulative effect
of the sentences is fifteen years imprisonment with all but three years
suspended and a total of twelve years of probation.  In addition, the court
imposed various conditions of probation and mandatory financial surcharges.
	[¶15]  Ricker applied to the Sentence Review Panel of this Court for a
review of his sentence.  See 15 M.R.S.A. §§ 2151-2157 (Supp. 2000);
M.R. Crim. P. 40.  He alleged that the sentencing court erred in determining
steps one and three of the Hewey analysis, that is, the basic sentence and
the amount of the sentence to be suspended.  See State v. Hewey, 622 A.2d
1151 (Me. 1993); 17-A M.R.S.A. § 1252-C(1), (3) (Supp. 2000).  The
Sentence Review Panel denied leave to appeal from the sentence.  Ricker
now claims that his sentence was illegal and imposed in an illegal manner
because the court considered improper hearsay and gossip contained in the
pre-sentence report.
	[¶16]  At the sentencing hearing Ricker specifically objected to the
portion of the pre-sentence report entitled "Local Observations" in which
statements from three people were included.  The first statement was from
a woman who recalled that her father, a former deputy sheriff now
deceased, told her in the early 1980s to stay away from Ricker.  She had the
impression that this was because of some sexual impropriety.  The second
statement was from a woman who was a seventh grade student in the late
1950s when Ricker was a school bus driver.  She reported that it was
common knowledge that one of the older girls was having an affair with
Ricker.  The third statement was from a man who had ridden the school bus
as a student when Ricker was the driver, and he recalled that Ricker
routinely stopped the bus at the home of one of the girls and accompanied
her into her home for a few minutes to get a pail of water for the bus.
	[¶17]  The sentencing court refused to strike the "Local Observations"
portion of the pre-sentence report, but it noted that the statements were
triple or quadruple hearsay and stated that it "would afford them very little
weight."  Ricker claims that the inclusion of the "Local Observations" in the
report and the refusal of the court to strike them violates Ricker's due
process rights because the information was not reliable.  Ricker
acknowledges that hearsay may be received by a sentencing court, but he
contends that the hearsay may only be considered when it is reliable. 
	[¶18]  We first determine whether Ricker may appeal his sentence as
a matter of right, pursuant to 15 M.R.S.A. § 2115 (Supp. 2000), or whether
he is limited to a discretionary review, pursuant to 15 M.R.S.A. § 2151.  We
permit an appeal from a sentence as a matter of right whenever the
appellant claims that his sentence was illegal or imposed in an illegal
manner.  This is in contrast to a claim by a defendant that the sentence is
excessive or inappropriate.  We have said that the appropriateness of a
sentence is a matter of discretionary review, State v. Goodale, 571 A.2d 228,
229 (Me. 1990), but that an illegality of a sentence may be raised in a direct
appeal as a matter of right so long as the illegality appears plainly in the
record, State v. Parker, 372 A.2d 570, 572 (Me. 1977).  If the illegality does
not appear plainly in the record, the defendant is left to a collateral attack
on his sentence.  State v. Tellier, 580 A.2d 1333, 1333 n.1 (Me. 1990).  
	[¶19]  Ricker claims that his due process rights were violated because
the court utilized unreliable information in fashioning his sentence.  When a
sentence is imposed on the basis of unreliable information, the Due Process
Clause is implicated.   State v. Dumont, 507 A.2d 164, 165-66 (Me. 1986). 
Ricker's contention that his sentence was imposed with the use of
unreliable information is a challenge to the legality of the sentence from
which he may appeal as of right.  Furthermore, he may raise the issue
directly, as opposed to collaterally, because his claim is that the challenged
portion of the pre-sentence report, on its face, is unreliable.
	[¶20]  Our review of the sentencing transcript plainly reveals that the
court made no use of the "Local Observations."  When the court gave its
reasons for imposing the sentences, it made no mention of any information
contained in this portion of the pre-sentence report.  Instead, the court
properly reviewed the circumstances of the offenses and the manner in
which the sexual assaults and contact were committed.  The court detailed
the culpability of Ricker, noting the fact that Ricker was informed, when the
niece was six years old, that she had accused him of sexual molestation, but
he continued to have frequent contact with her because he believed that her
family and the authorities did not find her credible.  The court also
described Ricker's age and health.  It is readily apparent from the court's
articulation of its concerns regarding the sentence that the "Local
Observations" portion of the pre-sentence report did not influence the
court.  Because the court recognized that this information was unreliable,
terming it "rumor" and "triple or quadruple hearsay," and made no use of it
in forming the sentence, the sentence was not based upon unreliable
information, and the due process rights of the defendant were not violated.
	The entry is:
			Judgment affirmed.
                                                         
Attorneys for State:

David W. Crook, District Attorney
Alan P. Kelley, Deputy Dist. Atty., (orally)
95 State Street
Augusta, ME 04330

Attorney for defendant:

Leonard I. Sharon, Esq., (orally)
Sharon, Leary & DeTroy
P O Box 3130
Auburn, ME 04212-3130