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State v. Jones

Supreme Court of Maine

March 5, 2019


          Argued: September 11, 2018

          Stephen C. Smith, Esq. (orally), and T. Evan Fisher, Esq., Lipman & Katz, PA, Augusta, for appellant Arthur J. Jones

          Maeghan Maloney, District Attorney, Frayla Tarpinian, Asst. Dist. Atty., and Christy Stilphen, Stud. Atty. (orally), Prosecutorial District IV, Augusta, for appellee State of Maine


          SAUFLEY, C.J.

         [¶1] Arthur J. Jones appeals from a judgment of conviction entered by the Superior Court (Kennebec County, Mullen, J.) as a result of a jury verdict finding him guilty of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A (1)(B) (2018), and assault (Class D), 17-A M.R.S. § 207(1)(A) (2018). Over Jones's objections at trial, the court, pursuant to 16 M.R.S. § 357 (2018), admitted a portion of a report of a sexual assault forensic examination (SAFE) performed on the adult female victim upon her arrival at Maine General Hospital. Jones argues that (1) the court erred or abused its discretion in admitting part of the SAFE report because the admitted portion did not satisfy the requirements of Maine Rule of Evidence 803(4) and (2) even if the report were admissible pursuant to a hearsay exception, the report was cumulative or unduly prejudicial and should have been excluded pursuant to M.R. Evid. 403. We take this opportunity to address the interplay between the Maine Rules of Evidence and 16 M.R.S. § 357-a statutory exception to the general exclusion of hearsay evidence, allowing the admission of certain hospital records. We affirm the judgment.

         I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the verdict, the jury rationally could have found the following facts. See State v. Fay, 2015 ME 160, ¶ 2, 130 A.3d 364.[1] On the evening of December 21, 2016, Jones and the victim, who were social acquaintances, were at Jones's house when the victim got up and walked toward the bathroom, and Jones stood in her way and threw her on a bed. The victim escaped, but Jones dragged her up the stairs by the neck. Jones then took her pants off, touched his mouth to her genitals, further assaulted her with his finger, and "penetrated [her] with his penis." The victim fled Jones's home, without clothes except for a shirt, and called 9-1-1. A police officer took the victim to Maine General Hospital, and a nurse performed a SAFE procedure, gathering information from the victim and examining her physically.

         [¶3] Jones was charged by complaint in December 2016, and an indictment was issued in March 2017, charging Jones with gross sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2018), aggravated assault (Class B), 17-AM.R.S. § 208(1)(C) (2018), and unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(B). Jones pleaded not guilty to all charges, and a jury trial was held over the course of two days.

         [¶4] At trial, the victim recounted the assault in detail. The nurse who conducted the SAFE procedure also testified. She explained that while conducting the SAFE procedure, she inquired of the victim about the sexual assault "to understand what it was that I needed to be looking for ... moving forward into a physical exam ...." She documented the victim's responses in the SAFE report.[2] And, relying on the SAFE report to refresh her recollection, the nurse described the victim's statements on the night of the incident that the nurse used to treat the patient.[3]

         [¶5] In addition to the victim and the nurse, the officer who responded to the victim's 9-1-1 call and a detective from the Maine State Police testified. They identified photographs, entered in evidence, showing extensive and significant bruising of the victim's body. The State also played a portion of a video recording of the detective's interview with Jones, in which Jones acknowledged that he had placed the victim in a "chokehold" and that he had touched the victim's genitals with his mouth.

         [¶6] Jones testified on his own behalf and presented testimony from several witnesses. The essence of Jones's defense was that he and the victim were romantically involved and that they had consensual oral sex on the evening in question. At trial, in contrast to his earlier statement, Jones denied putting the victim in a chokehold, and he denied biting her. He testified that he did not remember sexually assaulting her with his fingers, and never "put [his] penis in ... or near her vagina."

         [¶7] In rebuttal, the State moved to admit the SAFE report, which was consistent with the victim's and nurse's testimony. Jones objected. The court reviewed the entire report and admitted only a portion of it, determining that the partial report was admissible pursuant to the statutory hearsay exception for hospital records that relate to treatment and medical history. See 16 M.R.S. § 357. The court excluded a portion of the report documenting a "Summary of Patient's Description of Assault (in patient's own words ...)," however, because it determined that this portion of the report was tantamount to a witness's statement made to a police officer, not a statement made for medical diagnosis or treatment.

         [¶8] The jury found Jones not guilty of gross sexual assault but guilty of unlawful sexual contact. On the aggravated assault charge, the jury found Jones guilty of the lesser included offense of assault (Class D), 17-A M.R.S. § 207(1)(A). See 17-A M.R.S. § 13-A (2018); M.R.U. Crim. P. 7(e). Following a sentencing hearing, the court sentenced Jones to four years' imprisonment for unlawful sexual contact and to nine months' imprisonment, to be served concurrently with the four-year sentence, for the assault, with no part of the sentences suspended. Jones timely appealed the resulting conviction. See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).


         [¶9] Jones argues that the court erred in admitting a portion of the SAFE report because, in his view, the report was not excepted from the hearsay exclusion set out in Rule 803(4).[4] He also argues that even if the report were otherwise admissible, it should have been excluded as unfairly prejudicial.[5]

         [¶10] Although Jones bases his argument on the application of Maine Rule of Evidence 803(4), an exception to the rule against the admission of hearsay, see M.R. Evid. 802, the presiding judge unmistakably admitted the report pursuant to 16 M.R.S. § 357.[6] Jones's argument challenging the admissibility of the SAFE report is based entirely on M.R. Evid. 803(4), and he does not mention section 357 in his brief to us. Instead, Jones insists that the court was required to exclude the report because the report did not satisfy the requirements of M.R. Evid. 803(4). In most instances, we would conclude that "[t]he failure to mention an issue in the brief or at argument is construed as either an abandonment," Holland v. Sebunya,2000 ME 160, ¶ 9 n.6, 759 A.2d 205, or a waiver, State v. Haskell,2001 ME 154, ΒΆ 2 n.3, 784 A.2d 4, of that argument. Nevertheless, because of the ...

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