State v. Thompson
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 	1997 ME 109
Docket: 	Cum-95-673
Submitted 
on briefs:	 December 13, 1996
Decided:	May 21, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

STATE OF MAINE 

v.

MILTON THOMPSON 

LIPEZ, J.	

	[¶1]  Milton Thompson appeals from the judgments entered in the
Superior Court (Cumberland County, Fritzsche, J.) pursuant to the jury
verdict finding him guilty of two counts of gross sexual misconduct (Class A),
17-A M.R.S.A. § 253 (Supp. 1996), two counts of gross sexual assault (Class
B), 17-A M.R.S.A. § 253(2)(H) (Supp. 1996), and one count of unlawful sexual
contact (Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 1996).  Contrary to
Thompson's contentions, the evidence was sufficient to demonstrate beyond
a reasonable doubt that the gross sexual misconduct charged in Count I and
the unlawful sexual contact charged in Count II occurred within the six-year
statute of limitations, 17-A M.R.S.A. §§ 8(2)(A), 8(6)(B) (Supp. 1996); the
court did not abuse its discretion in admitting evidence of his prior bad acts,
M.R. Evid. 404(b), 403; and the court did not err in its instruction on the
elements of unlawful sexual contact charged in Count II, 17-A M.R.S.A. §
255(1)(C).  We therefore decline to vacate the convictions on Counts I, II, IV
and V.  However, as Thompson and the State agree, the evidence was
insufficient to prove beyond a reasonable doubt that the gross sexual
misconduct charged in Count III occurred within the six-year statute of
limitations.  Thus, we must vacate the conviction on Count III, direct the
entry of a judgment of acquittal on that count, affirm the convictions on the
other counts, and remand this matter to the Superior Court for
resentencing. 

I 

	[¶2]  In May 1994 complaints were filed against Thompson in the
District Court (Bridgton), alleging gross sexual misconduct with his older
daughter on or about May 4, 1988, to June 30, 1988, and unlawful sexual
contact on or about May 4, 1988.  In November 1994 Thompson was
indicted by a Cumberland County grand jury on charges of gross sexual
misconduct (Counts I and III), 17-A M.R.S.A. § 253, gross sexual assault
(Counts IV and V), 17-A M.R.S.A. § 253(2)(H), and unlawful sexual contact
(Count II), 17-A M.R.S.A. § 255(1)(C).  Count I named his older daughter as
the victim and alleged sexual misconduct with her "on or about the time
period between and including the Fourth day of May and the Thirtieth day of
June 1988"; Count II alleged that Thompson subjected his older daughter to
sexual contact "on or about the Fourth day of May 1988"; Count III alleged
gross sexual misconduct with his older daughter during a period from on or
about November 14, 1988, to January 10, 1989; Counts IV and V alleged
gross sexual assault against Thompson's younger daughter.{1}  All of the counts
alleged that the criminal activity occurred in Naples.   
	[¶3]  At the trial the older daughter testified that the family moved to
her grandmother's house in Naples when she was 12, at the end of her
sixth-grade year.  Thompson forced her to engage in anal intercourse there
in May and June of 1988, three or four times a week, in the middle of the
day.  The older daughter also stated that between May 1988 and January
1989, prior to her fourteenth birthday,{2} Thompson touched her vagina with
his hand at night in her bedroom in the Naples house.  The older daughter
also admitted that she originally told one of the police detectives that the
abuse happened in the spring of 1988, that it was "the last" time she
remembered her father touching her, and that she considered "spring" to
be "March, April."  
	[¶4]  Both daughters testified as to "prior bad acts" committed by
Thompson.  The older daughter testified that when she was 12 years old and
living with her family in Norway, she asked her father to buy one of her
favorite sandwiches and that he said he would if she would go out in the
woods with him and sit on his face.  She refused.  A few days later she was at
home sleeping in the room she shared with one of her sisters.  She awoke to
find the radio in the room covered with a pillow and her father sitting at the
end of her bed, removing her covers and her underwear, putting his face
between her legs, and licking her vagina.  The younger daughter testified
that she remembered "things happening with her dad" starting when she
was nine years old and they lived in Naples, and that she had more detailed
memories of things that happened to her later, when they lived in South
Paris, Norway, and Mechanic Falls (by which time she was 15 or 16),
including Thompson touching and licking her vagina.  
	[¶5]  The older daughter also testified on cross-examination about her
differences with her parents over money.  The State then asked about her
father's unsolicited offers of money in exchange for sexual favors.  The court
allowed this testimony over Thompson's objections because he had raised
the specter during cross-examination of the older daughter "that the
charges are being fabricated by a vindictive daughter who is not getting
adequate support for her post-secondary education."  
	[¶6]  Thompson was convicted on all counts.  This appeal followed. 

II 
Statute of Limitations 

	[¶7]  Thompson appeals from his jury convictions on Counts I and III
for gross sexual misconduct and on Count II for unlawful sexual contact,
claiming that the evidence was insufficient to prove beyond a reasonable
doubt that the offenses alleged occurred within the six-year statute of
limitations.  17-A M.R.S.A. § 8(2)(A).  Because "[i]t is a defense that
prosecution was commenced after the expiration of the applicable period of
limitations," 17-A M.R.S.A. § 8(1), the State is not required to negate the
possibility that the offense was committed outside the statutory period
"unless the existence of the defense . . . is in issue as a result of evidence
admitted at the trial which is sufficient to raise a reasonable doubt on the
issue."  17-A M.R.S.A. § 101(1) (1983).  The State must then "disprove its
existence beyond a reasonable doubt."  Id.; State v. Borucki, 505 A.2d 89, 91
(Me. 1986).  Evidence sufficient to raise a reasonable doubt on an issue
means evidence sufficient to make the existence of all the facts constituting
the defense a reasonable hypothesis for the fact finder to entertain.  State v. 
Glidden, 487 A.2d 642, 644 (Me. 1985).   
	[¶8]  A prosecution for a Class A, B or C crime must be commenced
within six years after it is committed. 17-A M.R.S.A. § 8(2)(A).  A prosecution
is commenced whenever a criminal complaint is filed.  17-A M.R.S.A. §
8(6)(B).  The two complaints that were filed against Thompson in the
District Court on May 5, 1994, became the subjects of Counts I and II of the
indictment.  At the trial, the older daughter acknowledged that she wrote in
a statement she sent to the police detectives that the relevant sexual abuse
had occurred in the spring of 1988, and she testified further that "spring"
is "March, April," a period outside the statute of limitations that began on
May 5, 1988.  However, her testimony about the conduct charged in both
counts covered incidents falling both inside and outside the statute of
limitations period.  
	[¶9]  In response to a leading question asked by the State, without
objection by Thompson, the older daughter testified that Thompson forced
her to engage in anal sex three or four times a week during May and June of
1988 (conduct relevant to Count I).  On redirect, the older daughter stated
that the sexual abuse continued until she left for camp that summer after
school was over in June, and responded "yes" to the question whether, of
the types of sexual abuse to which she was subject, the anal sex was "some of
the last stuff that happened?"  The older daughter also testified, again in
response to a leading question to which Thompson did not object, that
between May 1988 and January 1989 Thompson touched her vagina with his
hand (conduct relevant to Count II).  After further questioning she said that
her father's abuse went on at least until she moved from Naples to Norway in
July 1988.  Hence, the older daughter's testimony describes sustained
periods of gross sexual misconduct and unlawful sexual contact that
occurred during parts of May and June-dates that are almost entirely within
the statute of limitations period.{3}  
	[¶10]  We also conclude, however, that the evidence adduced at the
trial was insufficient to convict Thompson of the gross sexual misconduct
charged in Count III, describing conduct that allegedly occurred in Naples
between November 1988 and January 1989.  The older daughter testified
that she did not live in Naples after July 1988, and she only testified to gross
sexual misconduct that occurred in Naples.  The State agrees.  We direct the
entry of a judgment of acquittal on this count.  

Jury Instructions

	[¶11]  In appealing his conviction on Count II,{4} Thompson argues that
the court erred in omitting from the jury instruction on unlawful sexual
contact the phrase "other than as would constitute a sexual act."{5}  See 17-A
M.R.S.A. § 251(1)(D) (Supp. 1996); State v. Nickerson, 534 A.2d 1323,
1324-25 (Me. 1986) (vacating conviction due to trial court's failure to
include "other than as would constitute a sexual act" in jury instruction on
unlawful sexual contact).{6}  Thompson asserts that because the jury heard
evidence about the defendant's anal intercourse with the older daughter and
was not instructed that sexual contact is defined as contact "other than as
would constitute a sexual act," the jury could have convicted Thompson of
unlawful sexual contact based on facts relating to the gross sexual
misconduct.    
	[¶12]  Because Thompson challenges this instruction for the first time
on appeal, we review it in the context of the charge as a whole to determine
whether the court committed obvious error.  State v. Mair, 670 A.2d 910,
913 (Me. 1996); State v. Weisbrode, 653 A.2d 411, 416-17 (Me. 1995); M.R.
Evid. 103(d); M.R. Crim. P. 52(b).  We conclude that the court did not so err
by instructing the jury on the elements of unlawful sexual contact.  Even
though the court omitted the words "other than as would constitute a sexual
act" from its instructions, the balance of the charge-including the court's
distinction between "sexual act" and "sexual contact," its definition of
"sexual act," its specific statement that sexual contact "means any touching
of her genitals for the purposes of arousing or gratifying sexual desire," and
its instruction on the counts involving the younger daughter which also
addressed the definition of "sexual act"-communicated to the jury that it
could not use evidence of a sexual act to convict Thompson on the charge of
unlawful sexual contact.  In other words, the charge in its entirety made
clear to the jurors the difference between the kind of conduct involved in a
gross sexual assault and that involved in an unlawful sexual contact.   

	Evidence of Prior Bad Acts

	[¶13]  Thompson contends that we should vacate his convictions on all
five counts due to the court's error in admitting evidence of his prior bad
acts.  Although Thompson concedes that the court cautioned the jury that
such evidence may be considered only for limited purposes,{7} and not to
show the defendant's tendency to commit the charged crimes, Thompson
argues that the danger of prejudice was heightened in this instance because
the prior bad acts occurred outside the statute of limitations and may have
led the jury to convict him on the basis of conduct that could not be the
subject of criminal prosecution.  Thompson also argues that the evidence
was too vague to be useful for the allowable purposes relating to
demonstration of the defendant's motive, intent, or opportunity, or the
relationship of the parties.  See M.R. Evid. 404(b). 
	[¶14]  We review a court's decision to admit evidence pursuant to Rule
404(b) for clear error, and pursuant to Rule 403 for an abuse of discretion. 
State v. DeMotte, 669 A.2d 1331, 1335 (Me. 1996); State v. Joubert, 603
A.2d 861, 865 (Me. 1992).  When no objection is preserved at the trial
pursuant to M.R. Evid. 103(a), we review for obvious error affecting the
defendant's substantial rights.  State v. Lambert, 528 A.2d 890, 893 (Me.
1987); M.R. Evid. 103(d); M.R. Crim. P. 52(b). 
	[¶15]  We are mindful that the risk of unfair prejudice due to prior bad
act evidence in a trial for sex offenses "is particularly great because of the
general notion that sex offenders are more likely to be repeaters than
persons committing other crimes."  Field & Murray, Maine Evidence 
§ 404.5 at 131 (4th ed. 1997).  However, given the admission of some of this
evidence by agreement of the parties,{8} its probative nature on such issues as
opportunity and the relationship between the defendant and the victims, the
court's limiting and curative instructions to the jury prior to its admission
and within the final charge, and Thompson's failure to preserve an
objection{9} to either the introduction of the evidence or to the court's
limiting and curative instructions, we conclude that the court did not
commit obvious error in admitting the evidence of Thompson's prior bad
acts.   
	[¶16]  The fact that some of the evidence of Thompson's prior bad
acts concerned events outside the statute of limitations does not require a
different result.  Henriksen v. Cameron, 622 A.2d 1135, 1143 (Me. 1993);
Caron v. Caron, 577 A.2d 1178, 1180 (Me. 1990).  The court addressed the
potential for unfair prejudice by instructing the jury both prior to the
testimony and as part of the jury charge that it could consider the evidence
of prior bad acts for limited purposes only and that those prior bad acts were
not among the five incidents charged.  See Henriksen, 622 A.2d at 1143
(admitting evidence of assault beyond the statute of limitations period in an
action for assault and battery not overly prejudicial "especially in light of the
proper limiting instructions"); see also State v. Bennett, 658 A.2d 1058,
1063 (Me. 1995) (jury is presumed to follow court's instructions absent
evidence to the contrary).  
	The entry is:
Judgments affirmed as to Counts I, II, IV and V.  Judgment
on Count III vacated.  Remanded for the entry of a
judgment of acquittal on Count III and for resentencing.
                                                               

Attorneys for State:

Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty.
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Diane Powers, Esq.
44 Exchange Street
Portland, ME 04101
(for appeal only)

FOOTNOTES******************************** {1} Counts IV and V allege that Thompson committed gross sexual assault against his younger daughter during a period "between and including the [sic] November 1992," and during a period "between and including the [sic] December 1992," respectively. The relevant statute states in pertinent part: A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: . . . H. The other person has not in fact attained the age of 18 years and the actor is a parent, . . . . 17-A M.R.S.A. § 253(2)(H). There is no statute of limitations issue in the charges involving the younger daughter. {2} The older daughter was born on January 11, 1975. {3} In State v. Borucki, 505