*1 proposed jury instruction on the issue of consent as defense.1 Lack of consent is an ele [¶2] ment of both the crimes that Garrison was charged violating.2 with The court had al ready jury instructed the that to find Garri guilty charged son indict crimes ment, beyond had find a reasonable doubt that the victim had not consented to charged. jurors the conduct Instructing the again to consider the issue of consent would unnecessarily duplicative. have been properly rejected proposed Garrison’s jury concerning instruction the issue on already adequately which the court had in Atkinson, jury. structed the 1200, 1203-04 (Me.1983). entry is: Judgments affirmed. Anderson, Stephanie District Ju- Sheridan, lia Pope, Deborah Asst. Dist. At- Portland,
tys., for State. Raymond, Brunswick,
Robert S. for defen-
dant. WATHEN, C.J., ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, STATE of Maine
RUDMAN, Justice. Ray F. BROWN. appeals [¶ 1] Chester Garrison Supreme Judicial Court of Maine. judgments entered in the (Cumberland County, Fritzsche, following Submitted on Briefs Nov. 1996. jury verdicts of gross two counts of assault, § sexual 17-A (Supp. M.R.S.A 253 1996), and one count of unlawful sexual con-
tact, § 17-A (Supp.1996). M.R.S.A.
contends that the refusing court erred in states, § pertinent ment as to the nature or harmfulness of the charged conduct to constitute the crime.... that, misconduct, charge gross It is a defense when a defendant 2. For the of sexual engages jury beyond had to conduct which would otherwise find reasonable doubt that "engage[d] prop- constitute a Garrison in ... a sexual act” with the crime of victim, another, erty and the of victim "unconscious or oth- such other consented to the incapable resisting erwise of not con- negat- ha[d] conduct and an element of the crime is sented such sexual ... act.” 17-A M.R.S.A. ed as a result of such consent 253(2)(D) (1983). § contact, 3. Consent is not a defense within the mean- charge For the of unlawful sexual ing of this section if: beyond jury had to find a reasonable doubt that "intentionally subject[ed]” Garrison the victim to who, ,..[t]he given by person “any B. It is reason sexual other is intoxication, defect, youth, physically incapable mental illness or unconscious or otherwise unable, manifestly resisting, or known the defen- and has not consented to the sexual unable, 255(1)(B) (1983). judg- dant to be to make a reasonable contact...." 17-A M.R.S.A. *2 Christopher Akny, District C.
R. Wood, Atty., Bangor, for Asst. Dist. Daniel State. Tahous, of Tanous Law Offices
Nolan H. Millinocket, Snow, for defendant. C.J., GLASSMAN, WATHEN, LIPEZ, CLIFFORD, RUDMAN, and CLIFFORD, Justice. appeals from the Ray F. Brown 1]
[¶ judgment of a conviction in viola- vehicle under the influence of (1996)1 § 2411 entered of 29-A M.R.SA. tion (Penobscot County, Superior in the Court Mead, J.), plea of following his conditional M.R.Crim.P. pursuant to entered 11(a)(2). Superior challenges the of the Dis- of the decision Court’s affirmance Gunther, (Millinocket, trict Court obtained suppress all evidence his motion to contends of his vehicle. error hold- committed clear that the court based on ing stop of his vehicle was that the reasonable, suspicion that traffic violation. engaged in a civil Brown was error, Finding we affirm no hearing on Brown’s At the officer, arresting Thomas Jamo suppress, the Department, Police East Millinocket 17, 1995, at On June testified as follows: patrol in approximately p.m., while 3:25 pick- Millinocket, he observed East speed across going a slow rate of Birch Street and alleyway that runs between alleyway is a Beech Street. m.p.h. applies. speed limit of to which a Brown’s vehicle to speed of He estimated the recognized m.p.h., and approximately 5 belonging to Brown. the vehicle as that he intended testified 3] The officer [¶ why it was to determine stop the vehicle to continued and that he proceeding so slow Street, Street, onto Park Birch turned and Beech of Park to the intersection came the street see glanced down Streets. intoxicants; the influence of A. While under provides § 2411 1. 29-A M.R.S.A. OUI, which is 1. Offense. level of having a blood-alcohol B. While provided, if crime unless otherwise a Class D or more. operates 0.08% a motor vehicle: gone investigate where Brown’s vehicle had and saw that what was the can for the pharmacy parking driving lot. infraction of a motor Approximately eight appealed five seconds had vehicle.3 Brown the denial of his elapsed between the time that the officer had motion to *3 proceeding slowly Brown’s subsequently plea
seen and entered a conditional parked. guilty. when he saw it The officer testified The Court affirmed the de- Court, that appeal as he drove his cruiser toward Brown’s cision of the District and this vehicle, he noticed Brown take a drink out of followed. thought might a “silver can” that he be a [¶ 5] Brown contends that the pulled alongside beer can. officer The finding court in committed clear error that vehicle, cruiser, got Brown’s out of his and there awas reasonable articulable approached Brown. The officer witnessed disagree. for Officer Jamo’s intrusion. We drink, taking eye Brown finish make In investigatory stop order to a brief put and the can on floor. The vehicle, of a such as the in this Brown, you officer asked drink- “What are case, police officer must have an articulable
ing?”
replied “nothing”
upon
Brown
but
fur-
suspicion that criminal conduct
aor
civil
questioning by
ther
the officer admitted that
occurred,
occurring,
violation has
or is
he had a beer.
occur,
about to
and the officer’s
“objectively
[¶ 4] The officer testified that he ob
in
must be
reasonable
the totali
face,
Cusack,
served Brown to
ty
have redness in his
of the circumstances.” State v.
pupils
slightly
speech.
16,
dilated
and
slurred
649 A.2d
18
We review the
get
officer asked Brown to
out
finding
possessed
of his car
trial court’s
that an officer
perform
sobriety
some field
tests.
sup
As
reasonable and articulable
got
car,
out of his
port
investigatory stop
the officer noticed
anof
automobile
stabilize himself and smelled an “odor
a clear error standard.
v.
State
Brown,
504,
of alcohol.”
perform
Brown refused to
675 A.2d
505
tests,
placed
custody,
was
in
put
approached
vehicle,
and
in the Officer Jamo
he
(5
cruiser.
In
sup
driving very
Brown’s motion to
had noticed Brown
slow miles
press,
hour).
circumstances,
the court
per
concluded that the
Although
officer’s
in these
approach of
inquiry
Brown’s vehicle and
may
the slow
alone
be an insufficient
drinking
vehicle,
what Brown was
was a
covered
basis on which to
Jamo also
Brown,
the Fourth Amendment but that the in
observed
while in the ear and within
justified.2
trusion was
being
The court
operating
determined
seconds of
seen
he
that, although
proof
there was no
from a silver can that looked like a
can,
addition,
can was a beer
right
the officer had the
beer can.
In
Jamo saw Brown
suppression hearing
2. At the
police
up
the State contended
seizure when
officer walked
to a
then,
place
that a seizure did
parked pickup
opened
not take
when Officer
when driver
questioned
door,
only
alcohol);
Jamo
Brown but
Burgess,
when Brown
smelled
Cf.
163
get
259,
202,
(conduct
was asked to
out of the car. The test of
Vt.
657 A.2d
203
whether there has been a seizure as set forth in
police
displaying
lights
pulling
blue
after
Mendenhall,
544,
United States v.
446 U.S.
100
"stop,”
behind defendant’s vehicle constituted a
1870,
(1980),
leave).
S.Ct.
reasonable articulable occurring
infraction had occurred or was and his approach
that his of Brown’s vehicle justified. inquiry
limited entry is: *4 OF TOWN SANFORD Judgment affirmed. NJ & SANFORD TRUST. GLASSMAN, Justice, dissenting. Supreme of Maine. Judicial Court Because I believe the District Court [¶ 6] by denying erred Argued March stop all evidence obtained as a result of the respectfully of his I must dissent. concedes,
The Court and the District Court
determined, in the circumstances of this case parking, en- alley
the use of the for and residences located
trances businesses alley, pedestrian traffic and children
on the operation
bicycling alley, that Brown’s rate of was an his vehicle a slow stop for the
insufficient basis
vehicle. is well established that
[¶ 7] The law stop be based on infor- for a must time of
mation to the officer at the available evidence and cannot be bolstered stop. Chapman, 495
secured The reasonable
A.2d requires more
articulable standard speculation. Id.
than mere Here, prior the record reveals nothing to Jamo observed Officer operat- suspicion that Brown was
ing his vehicle while under the influence that Jano
alcohol. It was after any indicia appearance and
observed Brown’s consump- impairment. The physical
of his by an adult liquor in a motor vehicle
tion of public not the vehicle nor a civil violation.
way is neither a crime Nelson, sip from a beer can
Observing Brown take a does not in his
while seated rise previously operated his vehicle
that he had