State v. Oeur
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 82
Docket:	Cum-97-536
Submitted
 on Briefs:	March 9, 1998
Decided:	April 23, 1998

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

STATE OF MAINE

v.

SAVOEUN OEUR

DANA, J.

	[¶1]  Savoeun Oeur appeals from judgments of conviction entered in
the Superior Court (Cumberland County, Cole, J.) after a jury-waived trial in
which he was found guilty of three counts of aggravated assault in violation of
17-A M.R.S.A. § 208 (1983) (Class B).  Oeur contends that the court
committed prejudicial error when it permitted the prosecutor to refer to
his previous juvenile adjudication for assault during his cross-examination. 
We find no abuse of discretion in the court's ruling, and after modifying the
judgments to reflect a single conviction and sentence, we affirm.
	[¶2]  On the evening of October 12, 1996, Oeur was traveling with five
of his friends in a van on Brighton Avenue in Portland when five male
occupants of a Ford Escort that had pulled alongside the van began shouting
remarks at the van's three female passengers.  Words continued to pass
between the occupants of the vehicles as they proceeded along Brighton
Avenue until both vehicles parked near the intersection of Brighton and
Bancroft Street.  The two groups of youths left their vehicles and a physical
altercation ensued.  During the course of the altercation, Oeur wielded a
knife and stabbed the Escort's driver, Bruce Redington, at least four times,
including one life-threatening wound that punctured Redington's lung.
	[¶3]  Oeur was subsequently indicted for attempted murder and three
counts of aggravated assault pursuant to the three alternative theories set out
in 17-A M.R.S.A. § 208(1).{1}  Prior to the trial, Oeur filed a motion in limine
that sought to prevent the prosecutor from making use of his juvenile
adjudication for assault in any way during the trial.  No ruling on the motion
was made on the record.  After Oeur testified on direct examination that he
dropped out of school after this incident because he was embarrassed that
people might think he was a criminal, the prosecutor asked the following
questions on cross examination without objection:

PROSECUTOR:  Didn't people think you were a criminal when
you were convicted for aggravated assault two years ago?

OEUR:	No.

Q.	Didn't that make you a criminal?

A.	No.

Q.	An aggravated assault conviction?

A.	No.

Q.	Why didn't that make you a criminal?

A.	Because that's not that bad.

Q.	Aggravated assault isn't that bad.  So an aggravated assault
doesn't make a criminal, but attempted murder does?

A.	Yes.

Q.	Yes?

A.	Yes.  I never stabbed nobody before in my life.

The court acquitted Oeur of the attempted murder charge but found him
guilty of each of the three alternative counts of aggravated assault.  On each
count, Oeur was sentenced to concurrent sentences of eight years of
imprisonment with all but five years suspended followed by four years
probation.{2}
	[¶4]  Oeur argues that the prosecutor's use of his juvenile adjudication
was error.  Although Oeur filed a motion in limine to exclude evidence of his
prior adjudication, he failed to renew his objection when the evidence was
offered to the court during the trial.  We therefore review the court's actions
for obvious error.  M.R. Crim. P. 52(b); State v. Poulos, 1998 ME 43, ¶ 3, ---
A.2d ---.  "Error is obvious only when it is so highly prejudicial and so taints
the proceedings as virtually to deprive the defendant of a fair trial."  State v.
Pelletier, 673 A.2d 1327, 1330 (Me. 1996).  The court's decision to allow
cross-examination on a matter raised by Oeur during his direct examination
did not deprive him of a fair trial.
	The entry is:
Judgments modified to reflect a single
conviction of  aggravated assault and a
single sentence for that conviction, and
as so modified, affirmed.
                                                                                          

Attorneys for State:

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

Attorney for defendant:

Robert M. Napolitano, Esq.
Clarence Hale Mansion
765 Congress Street
Portland, ME 04102

FOOTNOTES******************************** {1}. The statute provides in pertinent part: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon; or C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Such circumstances include, but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim. 17-A M.R.S.A. § 208 (1983). {2}. Although not raised by Oeur on appeal, the State correctly points out that because he was charged under alternative theories of the same crime, Oeur's convictions must be merged as a matter of law into a single conviction with a single sentence. See State v Dechaine, 572 A.2d 130, 136 (Me. 1990); State v. Allard, 557 A.2d 960, 962 (Me. 1989).