State v. McKenna
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 49
Docket:	Ken-97-123
Submitted
on Briefs:	December 23, 1997
Decided:	March 9, 1998

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

STATE OF MAINE

v.

ROBERT McKENNA

ROBERTS, J.
	[¶1]  Robert McKenna appeals from the judgment entered in the
Superior Court (Kennebec County, Alexander, J.) after a jury trial convicting
him of forgery in violation of 17-A M.R.S.A. § 703 (1983 & Supp. 1994). 
McKenna asserts that he was denied his constitutional right to confront a
witness against him because that witness was intoxicated during much of his
testimony, and a portion of that testimony was taken outside the jury's
presence.  McKenna asserts further that evidence concerning his
participaton in a prior incident involving forgery was improperly admitted
against him.  Finally, he asserts that there was insufficient evidence to
support the finding that he had the requisite intent to perpetrate forgery. 
Finding no merit in McKenna's arguments, we affirm the judgment.  
	[¶2]  The owner of the checks cashed by McKenna began his
testimony while in a heavily inebriated state.  The victim appeared to be
confused at several points during his testimony, occasionally responded
inappropriately to the questions posed, and repeatedly requested that he be
allowed to go home.  When it became apparent that the victim could not
participate constructively in the proceedings, the court suspended his
testimony.  The victim was held in the county jail until he was sufficiently
sober to continue.  The remainder of his testimony was then taken out of the
jurors' presence and read back to them the next day.  McKenna asserts that
the victim's inebriation and the manner in which his testimony was taken
effectively deprived McKenna of his constitutional right to confront a
witness against him.  
	[¶3]  A trial justice has considerable discretion in managing the
conduct of the trial.  Absent an abuse of discretion, which interferes with
the rights of a party to a fair trial, we will uphold the trial court's decisions
concerning the scope and manner of examination of witnesses.  State v.
Rolls, 599 A.2d 421, 422 (Me. 1991); see M.R. Evid. 611(a) (allowing the
court to exercise reasonable control over the mode of interrogating
witnesses so as to make the interrogation effective for the ascertainment of
truth and to avoid needless consumption of time);  see also M.R. Crim. P. 15
(allowing the taking of a witness's testimony by deposition in a criminal trial
if the witness is unable to attend or prevented from attending trial, the
witness's testimony is material, and the witness's testimony is necessary to
prevent a failure of justice).  
	[¶4]  Neither party objected to the manner in which the court elected
to proceed, and McKenna had a full opportunity to cross-examine the victim. 
Given the court's appropriate concern for avoiding a mistrial, the manner
chosen was both necessary and within the court's discretion.
	[¶5]  McKenna asserts that the court erred by allowing the State to
cross-examine him about a prior incident when he had cashed a forged
check.  The State represented to the court that it had evidence to prove
that McKenna had previously received a stolen and forged check from one of
the individuals involved in the present forgery case.  The State requested
that it be allowed to inquire about this past incident for the purpose of
impeachment because McKenna had testified that he had no reason to
believe that the victim's checks were forged.  The State reasoned that,
because he had received a forged check on a prior occasion from an
individual involved in the present case, McKenna did have reason to suspect
that on this occasion the victim's checks were forged.  
	[¶6]  We review with deference the trial court's decision to admit
evidence because questions of admissibility frequently involve the weighing
of probative value against considerations militating against admissibility, in
this instance, the potential for unfair prejudice to McKenna.  See State v.
Bowman, 681 A.2d 469, 471 (Me. 1996).  Given the representation made by
the State, the court acted within its discretion in allowing the State to
inquire about this prior incident for the purpose of impeachment.  
	[¶7]  Finally, McKenna asserts that there was insufficient evidence to
support the jury's finding that he had the requisite intent to defraud or
deceive the victim.{1}  The State presented evidence that McKenna cashed
the four checks over a period of three weeks at three different locations,
that he did not know the victim, and that the victim neither loaned him any
money nor purchased anything from him.  McKenna acknowledged all of this
and further stated that he received a portion of the proceeds from the
checks.  The jury reasonably could have inferred from this circumstantial
evidence that McKenna did intend to defraud the victim.  State v. Marden,
673 A.2d 1304, 1312 (Me. 1996).  
	The entry is:
				Judgment affirmed.
                                                                  
Attorneys for State:

David W. Crook, District Attorney
Alan P. Kelley, Dep. Dist. Atty.
95 State Street
Augusta, ME 04330

Attorney for Defendant:

Brian P. Winchester, Esq.
116 State Street
Augusta, ME 04330