[¶ 1] Edmоnd Cloutier appeals from the judgments of conviction entered in the Superior Court (Somerset County, Kravchuk, J.) on jury verdicts finding him guilty of one count of unlawful sexual contact and four counts of gross sexual assault On appeal he argues (1) the court erred in limiting cross-examination; (2) the evidence at trial fatally varied from the allegations in the indictment; (3) there is insufficient evidence to sustain his convictions on four of the five counts; and (4) the court erred in instructing the jury. We affirm the judgment.
[¶2] In March 1994 Edmond Cloutier was indicted on six counts: Count I, unlawful sexual contact pursuant to 17-A M.R.SA. § 255(1)(C) (Class C), Counts II-V, gross sexual assault pursuant to 17-A M.R.S.A. § 253(1)(B) (Class A), and Count VI, gross sexual assault pursuant to 17-A M.R.S.A. § 253(2)(H) (Class B).
1
The charges involve
I.
Cross-examination
[¶ 3] Before the trial the State filed a motion in limine requesting Cloutier be prohibited from introducing copies of two letters sent to his wife, the victim’s mother. The letters were found by the victim in the summer of 1993, about six months before informing her mother of the sexuаl abuse. One letter contains information about the wife’s dissatisfaction with her marriage, and the other describes sexual activity between her and another man. Cloutier’s theory regarding the letters was as follows: The victim was a rebellious child, resisting any parental limitation of her behavior, and the letters provided her with “lеverage” against her mother. After finding the letters she provided them to her father and requested that he obtain a divorce and allow her to live with her grandmother, a desire she had expressed previously. After Cloutier refused, the victim made the allegations of abuse. Cloutier also theorized that his wife was fearful the сontent of the letters would be disclosed in the couple’s pending divorce and diminish her ability to obtain custody of their children.
[¶ 4] The court ruled preliminarily:
that the letters themselves will not be admissible, although counsel can question the witness surrounding events in connection [to them.] ... [Y]ou can ask the ... victim some questions about did you discover a letter that yоu thought someone had written to your mother? Yes. Did that letter upset you? Yes. Maybe she’s going to say no, I don’t know what she’s going to say. Did you go to your father to try to get him to take you out of the house? You know, you can do all that without admitting the letters into evidence.
Cloutier argues the court abused its discretion because thе limitation imposed on the use of the contents of the letters unconstitutionally limited his ability to cross-examine his accusers regarding their potential bias and motive to fabricate the charges against him. The State argues that Cloutier was permitted to thoroughly cross-examine the witnesses regarding their potential reaction to the letters as well as about any possibility of bias, and that the court merely placed a limit on referring to the inflammatory contents of the letters. We agree.
[¶5] The decision to admit or exclude evidence is reviewed for an abuse of discretion.
State v. Case,
[¶ 6] Although the court’s discretion to exclude evidence pursuant to M.R.Evid. 403 is limited in the circumstances of this case, Cloutier cannot show a link between the
contents
of the letters and any bias or motivation to he on the part of his daughter or wife. As the court stated, “I don’t see how the content of the letters moves forward that argument in any fair or probative fashion.” Contrary to Cloutier’s contention, the contents of the letters dо not provide the “critical link” in his argument that the victim had a bias against him or a motivation to he. First, Cloutier was permitted to question the victim about the letters and she admitted that their content led her to beheve her mother was
II.
Allegations in the Indictment and the Evidence at Trial
[¶ 7] Cloutier argues the State failed to present any evidence that he had sexual contact with the victim during the period between September 1, 1989, and September 1, 1991, as alleged in Counts I, II, and III of the indictment. 2 He argues the victim was ten and eleven years old during the time frаme alleged in the indictment, but the evidence showed sexual contact occurring only when she was six, twelve, thirteen and fourteen years old. Cloutier argues the indictment caused him to prepare a defense against charges he committed separate counts of gross sexual assault when his daughter was ten, еleven, twelve, thirteen and fourteen years of age, respectively, while the evidence presented at the trial established multiple acts committed within the same year. He argues that because the State failed to prove the elements of unlawful sexual contact and gross sexual assault at a timе reasonably close to the period alleged in Counts I — III of the indictment, there is both a material variance prejudicing his substantial rights and insufficient evidence to sustain the convictions.
A
The Indictment
[¶ 8] The State concedes that the victim’s testimony discloses the abuse occurred when she was twelve and thirteen rather than ten аnd eleven years of age; however, the State argues that our decision in
State v. Carmichael,
[¶ 9] In Carmichael, we stated:
A variance between allegation and proof at trial will justify the entry of a judgment of acquittal only when the State, as a result, fails to prove the crime alleged....
With respect to the date of the offense ‘[t]he settled rule of law is that ... proof of the commission of the offense on any day within the statute of limitations, regardless of the date alleged in the indictment is not a material variance unless it prejudices the defendant.’
Id.
at 47-48 (alteration in original) (quoting
State v. St.Clair,
B.
Sufficiency of the Evidence
[¶ 10] A review of the record reflects that Cloutier’s contentions regarding the sufficiency of the evidence with respect to Counts I—III are without merit. At the trial the victim testified about multiple acts of sexual abuse occurring over a periоd of about three years. When examining the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether a trier of fact rationally could find beyond a reasonable doubt every element of the offense charged.
State v. Mar-den,
[¶ 11] Cloutier also argues specifically that the proof of Count V establishes only that he had sexual contact with the victim while she was in the seventh grade, but that prior to entering the eighth grade she became fourteen years of age; thus, the evidence is ambiguous whether the victim was younger than fourteen at the time of the alleged offense. We disagree. The victim testified about a continuous pattern of sexual incidents that began about the time she was in the fifth grade and continued until she was in the eighth grade. From the еvidence presented the jury rationally could find beyond a reasonable doubt that the victim was abused while she was thirteen years old.
Marden,
[¶ 12] Cloutier’s remaining contention on this issue—that the variance between the evidence presented at the trial and the allegations in the indictment fail to protect him from double jeopardy—is without merit.
See State v. St.Clair,
III.
Jury Instructions
[¶ 13] At the end of the trial Cloutier requested that the court instruct the jury on the proper weight that it could attach, in considering his credibility, to the favorable character evidence that he was a good father. Cloutier argues that, despite his objections, the court erred in refusing to provide such an instruction. He contends that the credibility of -the victim, her mother, and himself was critical to the determination of guilt. Therefore, it cannot be said that the court’s failure to inform the jury of the relevance of the evidence to witness credibility did not affect the judgment. The State argues the court did not err because Cloutier failed to request the instruction at the proper time. The State contends Cloutier should have requested the instruction be given when thе evidence was offered, rather than at the end of trial, and that the court’s action does not constitute reversible error because it did not prevent the jury from considering the evidence.
[¶ 14] On appeal we review jury instructions in their entirety to ensure they are adequate.
State v. Michaud,
[W]hen evidence of the good character of an accused has been introduced, the court on request should instruct the jury as to the application of, and weight they may attach to, the evidence_ Nevertheless, the failure to instruct the jury on thе proper consideration of character evidence certainly should not result in an automatic reversal. See United States v. Baytank (Houston), Inc.,934 F.2d 599 , 614 (5th Cir.1991) (upholding conviction despite trial court’s refusal to give character instruction saying “abuse of discretion would occur only if the failure to give the instruction prevented the jury from considering the evidence.”).
State v. Mingo,
[¶ 15] Cloutier next argues the court committed reversible error by failing to give a limiting instruction regarding evidence of sexual misconduct not within the time period covered by the indictment.
3
Because Cloutier failed to object or otherwise preserve the alleged error, we review for obvious error affecting substantial rights. M.R.Crim.P. 52(b). Obvious error is error that is so highly prejudiсial and so taints the proceedings as to virtually deprive the defendant of a fair trial.
State v. Pelletier,
[¶ 16] Finally, Cloutier argues that the court committed reversible error by failing to inform the jury of the court’s dismissal of Count VI at the close of the State’s ease. We disаgree. In
State v. Vahlsing,
Judgments affirmed.
Notes
. 17-AM.R.S.A. § 255 (Supp.1996) provides:
1. A person is guilty of unlawful sexual contact if the person intentionally subjects another person to any sexual contact, and:
C. The other person, not the actor’s spouse, has not in fact attained the age of 14 years and the actor is at least 3 years older....
17-A M.R.S.A. § 253 (Supp.1996) provides:
1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and:
B. The other person, not the actor’s spouse, has not in fact attained the age of 14 years.
2. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and:
H. The other person has not in fact attained the age of 18 years and the actor is a parent, ... or other similar person responsible for the long-term care and welfare of that person....
. The indictment provides in pertinent part: [Count I] ... THE GRAND JURY CHARGES: That between September 1, 1989 and September 1, 1990, ... Edmond Cloutier ... subjected] ... [the victim] ... to an unlawful sexual contact....
[COUNT II] ... |T|hat between September 1, 1989 and September 1, 1990, ... Edmоnd Cloutier did engage in a sexual act with ... [the victim] ..., and the [victim] ... being 10 years old.
[Count III] ... [T]hat between September 1, 1990 and September 1, 1991, ... Edmond Cloutier did engage in a sexual act with ... [the victim] ..., and the [victim] ... being 11 years old.
[Count IV] ... rijhat between September 1, 1991 and September 1, 1992, ... Edmond Cloutier did engage in a sexual act with ... [the victim] ..., and the [victim] ... being 12 years old.
[Count V] ... |T|hat in the Fall of 1992, ... Edmond Cloutier did engage in a sexual act with ... [the victim] ..., and the [victim] ... being 13 years old.
[Count VI] ... [T]hat between November 25, 1993 and December 25, 1993, ... Edmond Cloutier did engage in a sexual act with ... [the victim] ..., and the [victim] ... being 14 years old....
. At the trial the victim testified Cloutier had touched her vagina through her underwear when she was six years of age.
