STATE of Maine v. Melanie S. MOURINO
Docket No. Han-13-523
Supreme Judicial Court of Maine
Nov. 25, 2014
2014 ME 131 | 106 A.3d 1124
Argued: Oct. 8, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.
MEAD, J.
[¶1] Melanie S. Mourino appeals from a judgment of conviction entered by the trial court (Mallonee, J.) following a bench trial on a complaint charging her with passing a stopped school bus (Class E),
I. BACKGROUND
[¶2] Viewed in the light most favorable to the court‘s verdict, the record supports the following facts, which are largely undisputed. See State v. Ormsby, 2013 ME 88, ¶ 12, 81 A.3d 336. On May 6, 2013, Mourino was driving on Ash Street in Bar Harbor after dropping her son off at daycare. Ash Street ends when it meets Park Street, which runs perpendicular to Ash, forming a “T” intersection. When Mourino arrived at the stop sign at the end of Ash Street, she saw a school bus that had been driving on Park Street stopped a short distance into the intersection. When she stopped, Mourino was facing the left side of the bus. The bus was picking up students directly across the intersection from Mourino‘s vehicle.
[¶3] Mourino testified that she could “see the children‘s feet under the bus,” and “saw the children getting on the bus.” A young boy ran down the sidewalk on Ash Street on the same side as Mourino and cut across the intersection, passing in front of the bus. Mourino said that because of the position of the bus relative to her vehicle she did not see any flashing lights on the bus itself or the lights on its left-side stop sign, which was extended, although she acknowledged that the lights may have been on. Mourino thought she made eye contact with the bus driver, and when the bus did not move she turned left and proceeded alongside the bus and down Park Street.
[¶4] The bus driver, Kathy White, testified that on that morning she stopped at the intersection of Park and Ash to pick up students. She paid particular attention because there had been problems with cars passing her bus at that intersection before. When Mourino approached on Ash Street, the bus was completely stopped with its front and rear red lights flashing. The extendable stop sign on the left side of the bus, the side facing Mourino, was deployed. The lights on the sign were also flashing. White testified that Mourino came to the stop sign on Ash Street and “started to roll through it.” White honked her horn, but Mourino turned left and proceeded down Park Street. White wrote down the plate number and reported the incident to the Bar Harbor Police Department.
[¶5] Officer Larry Fickett took the re-
[¶6] Mourino entered a plea of not guilty and the matter proceeded to trial on September 16, 2013. The court found her guilty and imposed a $250 fine, which she paid immediately. Two weeks later, Mourino filed a motion for findings of fact that the court denied. This appeal followed.
II. DISCUSSION
[¶7] The statute at issue provides:
The operator of a vehicle on a way, in a parking area or on school property, on meeting or overtaking a school bus from either direction when the bus has stopped with its red lights flashing to receive or discharge passengers, shall stop the vehicle before reaching the school bus. The operator may not proceed until the school bus resumes motion or until signaled by the school bus operator to proceed.
[¶8] It is well established that
[s]tatutory interpretation is a matter of law, and we review the trial court‘s decision de novo. In interpreting statutory language, our primary purpose is to give effect to the intent of the Legislature. We seek to discern from the plain language of the statute the real purpose of the legislation, avoiding results that are absurd, inconsistent, unreasonable, or illogical. If the statutory language is clear and unambiguous, we construe the statute in accordance with its plain meaning in the context of the whole statutory scheme.
Harrington v. State, 2014 ME 88, ¶ 5, 96 A.3d 696 (alterations, citations and quotation marks omitted). Furthermore, “criminal statutes must be construed strictly with ambiguities resolved in favor of the accused.” State v. Wilder, 2000 ME 32, ¶ 30, 748 A.2d 444.
[¶9] Here, even assuming arguendo that Mourino‘s interpretation of the statute is correct, the court could find from the evidence that Mourino was parallel to the stopped school bus at its approximate midpoint immediately after she turned left from Ash Street onto Park Street, that the bus‘s red lights were flashing, and that Mourino had not been signaled to proceed. At that point, applying the plain language of the statute, Mourino was “meeting” the bus, and, by continuing past it, she was “overtaking” the bus.
[¶10] Moreover, it would be illogical, if not absurd, for the Legislature to have intended that children approaching and boarding a stopped school bus be protected from motorists who pass the bus from the front or the rear along the bus‘s full length, but not from those who approach at an angle and pass only a portion of the bus. The potential for injury to schoolchildren trying to board the bus is equally present in either scenario. Using this case as an example, Mourino testified that a boy ran in front of her at the intersection to reach the bus. Applying her interpretation of section 2308(2), the boy was protected from traffic on Park Street but not from her vehicle, which she asserts was free to turn left and pass
The entry is:
Judgment affirmed.
Robert Van Horn, Esq. (orally), Ellsworth, for appellant Melanie Mourino.
This section contains material from a previous unrelated opinion appearing on page 893.
same little girl.” Walton further testified that the professionals at the Spurwink Center recommended that she continue to have her daughter attend the play therapy sessions with Cindy Barker.
[¶33] The record is devoid of any basis for a court to conclude that any of the daughter‘s statements to Ms. Barker resulted from any subjective purpose on the daughter‘s part to obtain diagnosis or treatment. Stated otherwise, the court had utterly no way of knowing what, if anything, the daughter thought the play therapy sessions were intended to accomplish or why it would be important to tell the truth. The only testimony in the record that remotely addresses the daughter‘s perceptions of the sessions is the testimony of Ms. Barker that, “I just—I introduced myself to her. Just kind of explained in an age-appropriate way my role, what I do. I work with kids. I talk to kids.” This testimony provides no insight into the daughter‘s perceptions, particularly when the testimony does not relate what was actually said.
[¶34] The fact that a parent may have a purpose in taking a child to a treatment facility does not translate into a subjective intent of the child—the declarant—to make statements for the purposes of diagnosis or treatment. The law provides no basis for a parent‘s purpose to be imputed to the child. Accordingly, I would conclude that the admission of the out-of-court statements by the child to Ms. Barker was erroneous.6 The trial court simply cannot conclude that a declarant had a particular subjective intent in making statements for purposes of medical diagnosis and treatment when the record contains absolutely no evidence, and allows no reasonable inference, of such.
[¶35] I do not suggest that a child‘s statements to a medical care provider require greater indicia of reliability than those that would be required of an adult‘s out-of-court statements. Rather, the proof regarding the circumstances of the statements—by an adult or a child—simply must be sufficient to establish a basis for a court to conclude that the declarant made them with the purpose of obtaining meaningful diagnosis or treatment.7 In the complete absence of such evidence, the foundation for Rule 803(4) is lacking, and the statements do not qualify as exceptions to the hearsay rule. Accordingly, I would vacate and remand for the court to determine whether the plaintiff met her burden of proof in the absence of these statements.
Notes
Q: Why were you seeing [the counselor]?
A: Because I was [sad/mad/scared].
Q: Did you think talking to her about why you were [sad/mad/scared] would help?
A: Yes.