Onе count of the indictment charging defendant Kenneth Drown, Sr., with statutory rape
1
alleged that the crime occurred “[bjetween the first day of January, 1980, and the thirty-first day of December, 1980,” that is, at some time during the calendar year 1980; and another count of statutory rape alleged the crime had again occurred “[bjetween the first day of January, 1981, and the thirtieth day of November, 1981,” that is, at some time during the first eleven months of 1981. Four other counts of the indictment charged gross sexual misconduct
2
and unlawful sexual contact,
3
alleged also to have occurred on some otherwise unspecified dates within those 12-month and 11-month periods.
4
The Superi-
In moving to dismiss the indictment, defendant argued that it was so vague as to the times of the offense that he could not adequately prepare his defense and that he would not be protected against double jeopardy. In responding at the hearing on that motion, the State asserted that Drown had molested his victim, said to be his stepdaughter, once or twice a week over the combined 23-month period referred to in the indictment. More specific pleading would require an enormous number of counts in the indictment, and further, said the State’s attorney, the young victim might be unablе in her testimony to be more specific as to the dates of the crimes than that they took place weekly in that period. However, the State has not, either below or on appeal, contradicted the facial intendment of each count of the indictment to charge only a single criminal act, not a succession of acts through the year 1980 and the first elеven months of 1981. The State also acknowledges, as it must, that at trial, in order to convict defendant on any count, it will be required to prove at least one identified instance of criminal conduct of the type charged in that count.
At the outset, we would do well to identify the simple alternative to appeal that was apparently open to the State as a meаns of preventing the frustration of the prosecution of defendant. As a general proposition, an indictment will withstand a pretrial motion for dismissal if its time allegation is introduced by the preposition “on or about.”
See
Forms 4-11, M.R.Crim.P. Here, it appears that all that the State needed to do to avoid the issue it seeks to have decided on this appeal was to amend the indictment to substitute, in count 1 for example, a time allegation of “on or about June 15, 1981,” or such other single date during the year 1981 as appeared best supported by the victim’s grand jury testimony.
6
Time is not an element of the offense sought here to be charged, except as necessary to establish that the victim was underage at the time it was committed.
See, e.g., State
v.
Hathorne,
Me.,
Even if the State could have obtained the revised indictment only by returning to the grand jury, see n. 5 above, that retracing of steps, though perhaps a nuisance, certainly involved much less delay and expense than an appeal. In the case at bar we take judicial notice that the grand jury that issued the indictment on January 5, 1982, is even now still sitting; thus, it might provе unnecessary even to recall the young victim to testify again before the grand jury.
Under circumstances where the State had readily available to it a means of avoiding the consequences of the Superior Court’s dismissal of an indictment, is the Law Court nonetheless compelled by 15 M.R.S.A. § 2115-A(1) to hear and decide the State’s appeal from that dismissal? We conclude that it is not; thаt such an appeal does not promote the salutary purpose for which the legislature has authorized pretrial appeals by the State and that it runs directly counter to principles of appellate review that both the legislature and this court have long recognized.
Our conclusion derives, in the first instance, from the legislative language itself.
See Central Maine Power Co. v. Public Utilities Commission,
Me.,
Our construction of section 2115-A(1) is reinforced by two deeply ingrained principles of appellate review, each of which involves important public policy considerations. First, there is in our jurisprudence a general requirement that a рarty in order to bring an appeal must have suffered a legal detriment as a result of the order of the tribunal below. That requirement furthers judicial economy by allowing the appellate court to avoid dissipating its limited resources in hearing and deciding unnecessary cases. Furthermore, the role of the judicial branch in the framework of government is to decide actual cases and controversies, and not to render advisory opinions except under those restricted circumstances in which they are permitted under article VI, section 3 of the Maine Constitution. Many examples can be cited of this pervasive principle of appellate review. A criminal defendant is by statute permitted to appeal a judgment, ruling, or order of the Superior Court only if he is aggrieved thereby,
see
15 M.R.S.A. § 2115 (1980); and the logic of the popular goose- and-gander rule suggests that in order to appeal under section 2115-A the State should also be required to show aggrievement, in the sense that the State really needs relief if it is to avoid “serious impairment to or termination of the prosecution.” On the civil side also, an appellate court will not entertain an appeal unless the result below has a direct and substantial adverse effect upon the appellant.
See Jamison v. Shepard,
Me.,
Second, the strong public policy against piecemeal aрpellate review also supports our construction of section 2115-A(1).
See State v. Bassford,
Me.,
When properly used, section 2115-A serves a beneficent purpose in permitting Law Court review of preliminary questions of law in situations where a criminal prosecution is threatened by a lower court ruling prior to trial. The legislature never intended, however, that section 2115-A(1) should permit the State to get an answer to a question of criminal pleading where the State is able to replead to аvoid any legal problem without in any way hampering the prosecution. We have recently warned of the folly of the State’s needlessly persisting in defending a charging instrument of questionable validity.
See State v. MacKerron,
Me.,
In the present case this court recognizes that there may be some possibility that the State after the passage of time will not be able to obtain from the grand jury a new indictment avoiding the dispute that resulted in dismissal of the original indictment. For example, еssential testimony of the young victim may have become currently unavailable and the grand jury may be unwilling to reindict on the basis alone of its memory of her testimony given before them in January. Since we here for the first time delineate the circumstances in which a State’s appeal may be dismissed as improvident, we will retain this appeal on our docket for whatever further aсtion may be appropriate after the State has diligently sought a new indictment from the grand jury.
The entry is:
This appeal is retained on the docket of the Law Court; the State is ordered to report on or before September 1, 1982, on its efforts to obtain a new indictment and the results of those efforts.
Notes
. 17-A M.R.S.A. § 252 (Supp.1981).
. 17-A M.R.S.A. § 253 (Supp.1981).
. 17-A M.R.S.A. § 255 (Supp.1981).
. In full, the indictment read:
Indictment for Violation 17-A of M.R.S.A. section 252 Rape (A)
Count 1 THE GRAND JURY CHARGES: Between the first day of January, 1981, and the thirtiеth day of November, 1981, at Oakland, in the County of Kennebec and State of Maine, Kenneth Drown, Sr. did engage in sexual intercourse with one [victim’s name], a female who had not in fact attained her 14th birthday, to wit, the said [victim] being of the age of 12 years, and the said [victim] not being his spouse.
Title 17-A, Section 253 Gross Sexual Misconduct (A)
Count 2 And your Grand Jurors aforesaid, upon their oath aforesaid, do further present that between the first day of Januаry, 1981, and the thirtieth day of November, 1981, at Oakland, in the County of Kennebec and State of Maine, Kenneth Drown, Sr. did engage in a sexual act with a female child, to wit, one [victim’s name], the said [victim] not having, in fact, attained her 14th birthday, to wit, the said [victim] being of the age of 12 years, and the said [victim] not being his spouse.
Title 17-A, Section 255 Unlawful Sexual Contact (C)
Count 3 And your Grand Jurors aforesaid, upon their oath aforesaid, do further present that between the first day of January, 1981, and the thirtieth day of November, 1981, at Oakland, in the County of Kennebec and State of Maine, Kenneth Drown, Sr. did intentionally subject one [victim’s name], the said [victim] not being his spouse, to an unlawful sexual contact, and the said [victim] had not, in fact, attained her 14th birthday and the said Kenneth Drown, Sr. being at least 3 years older, to wit, 35 years.
Indictment for Violation 17-A of M.R.S.A. section 252 Rapе (A)
Count 4 THE GRAND JURY CHARGES: Between the first day of January, 1980, and the thirty-first day of December, 1980, at Oakland, in the County of Kennebec and State of Maine, Kenneth Drown, Sr. did engage in sexual intercourse with one [victim’s name], a female who had not, in fact, attained her 14th birthday, to wit, the said [victim] being of the age of 11 years, and the said [victim] not being his spouse.
Title 17-A, Section 253 Gross Sexual Misconduct (A)
Count 5 And your Grand Jurors aforesaid, upon their oath aforesaid, do further рresent that between the first day of January, 1980, and the thirty-first day of December, 1980, at Oakland, in the County of Kennebec and State of Maine, Kenneth Drown, Sr. did engage in a sexual act with a female child, to wit, one [victim’s name], the said [victim] not having, in fact, attained her 14th birthday, to wit, the said [victim] being of the age of 11 years and the said [victim] not being his spouse.
Title 17-A, Section 255 Unlawful Sexual Contact (C)
Count 6 And your Grand Jurors aforesaid, upon their oath aforesaid, do further present that between the first day of January, 1980, and the thirty-first day of December, 1980, at Oakland, in the County of Kennebec and State of Maine, Kenneth Drown, Sr. did intentionally subject one [victim’s name], the said [victim] not being his spouse, to an unlawful sexual contact, and the said [victim] had not, in fact, attained her 14th birthday and the said Kenneth Drown, Sr. being at least 3 years older, to wit, 34 years.
. See
State v. Hathorne,
Me.,
. If the State wished the indictment to reflect the State’s claim that Drown molested his victim repeatedly over a period of twenty-three months, the indictment could have been redrawn to charge those multiple offenses in multiple counts using the “on or about” time allegation in each. Such a recast indictment would have resisted dismissal, although as we have cautioned in
State v. Gray,
Me.,
. 15 M.R.S.A. § 2115-A(1) provides in full:
Appeals prior to trial. An appeal may be taken by the State in criminal cases on questions of law from the District Court and from the Superior Court to the law court: From an order of the court prior to trial which suppresses any evidence, including, but not limited to, physical or identification evidence or evidence of a confession or admission; from an order which prevents the prosecution from obtaining evidence; from a pretrial dismissal of an indictment, information or complaint; or from any other order of the court prior to trial which, either under the particular circumstances оf the case or generally for the type of order in question, has a reasonable likelihood of causing either serious impairment to or termination of the prosecution.
Those portions of section 2115-A that deal with appeals after trial are not before us in this case. Thus, we are not here concerned with the limits on post-trial appeals by the State thаt were the subject of
State v. Howes,
Me.,
. Subsection (6) of 15 M.R.S.A. § 2115-A requires that:
The provisions of this section shall be liberally construed to effectuate its purposes.
. 15 M.R.S.A. § 2115-A(5) provides:
Approval of Attorney General. In any appeal taken pursuant to subsections 1 or 2, the written approval of the Attorney General shall be required; provided that if the attorney for the State filing the notice of appeal states in the notice thаt the Attorney General has orally stated that the approval will be granted, the written approval may be filed at a later date.
. In future cases, if any uncertainty exists whether an amendment of the charging instrument can be obtained, the State can preserve its appeal rights by filing a notice of appeal within the prescribed time and thereafter withdrawing it if successful in getting the amendment.
