Leslie Hoffstadt appeals from a judgment of conviction for unlawful sexual contact, 17-A M.R.S.A. § 255(1)(C) (Supp.1994), entered in the Superior Court (Cumberland County, Fritzsche, J.) following a jury trial. He contends that (1) the evidence was insufficient to support the jury’s guilty verdict, (2) the trial court erred in excluding evidence of the victim’s allegations of prior sexual abuse, and (3) statements made during the State’s summation deprived him of a fair trial. Finding no error or abuse of discretion, we affirm the judgment.
The victim was five years old at the time of the incidents leading to the charges against Hoffstadt. At trial, she testified to two incidents when Hoffstadt, a friend of the victim’s family who often visited the victim’s home, touched her in the “private area.” 1 The victim disclosed the incidents after she was confronted about engaging in play of a sexual nature with another child, saying that she learned about such things from Hoffstadt. She gave conflicting reasons for not telling her mother about the incidents when they happened, saying both that she did not want to hurt her mother, and that she thought Hoffstadt would hurt her mother. At trial, it was made clear that Hoffstadt never said anything to the victim about hurting her mother.
I.
Hoffstadt contends that the evidence was insufficient to support the conviction, relying on several inconsistencies in the victim’s testimony, especially her conflicting explanations of why she did not immediately disclose the incidents. He also points to her testimony that she remembered things, and then did not remember them. He argues that her story is contradictory, unreasonable, and incredible.
The standard to determine if evidence at a criminal trial is sufficient to support a finding of guilty is “whether, based on that evidence viewed in the light most favorable to the prosecution, any trier of fact rationally could find beyond a reasonable doubt every element of the offense charged.”
State v. Barry,
II.
Hoffstadt contends that the court imper-missibly excluded evidence that the victim had reported that a teenage relative had touched her private area on an occasion prior to the touchings involving Hoffstadt. The event was reported to the police at the same time as the Hoffstadt incidents. Hoffstadt argues that the evidence of the report was admissible pursuant to
State v. Jacques,
Evidence of past sexual activity of a victim in a case involving sexual assault or abuse is generally not admissible because it is irrelevant.
See State v. Rossignol,
In this case, the child victim described the touching of her “privates” and “private area.” The court concluded that the victim displayed no extraordinary sexual knowledge and that the presumption of naivete requiring rebuttal did not arise. Such a finding by the court is not clear error, and its decision to exclude evidence of the victim’s prior complaint was within its discretion.
Gilman,
In addition, Hoffstadt argues that he was entitled to have the evidence admitted on the issue of the victim’s credibility to demonstrate that the victim herself named a person in addition to Hoffstadt who had touched her private area. The court excluded the evidence pursuant to M.R.Evid. 412(a)
2
and M.R.Evid. 403.
3
Because the
The court also relied on rule 403 in excluding the evidence, concluding that admitting it risked diverting the jury’s attention toward a “separate trial” as to the circumstances of the report of the other abuse, and the abuse itself. Trial courts are given broad discretion pursuant to rule 403 to exclude evidence that may otherwise have some relevance when the probative value of the evidence is substantially outweighed by other considerations.
See State v. Dean,
III.
Hoffstadt’s final contention is that he was deprived of a fair trial by the closing arguments of the State. He argues that these comments were an impermissible statement of the State’s belief that the victim and the victim’s mother were telling the truth. We disagree. All attorneys are prohibited from expressing a personal opinion regarding the credibility or truthfulness of a witness.
See
M.Bar R. 3.7(e)(2)(v).
5
This is particularly true for a prosecutor who, as an agent of the State, is “cloaked with the responsibility of promoting justice, not just winning cases.”
State v. Marshall,
The central question is whether the comments are fairly based on the facts in evidence.
State v. Pendexter,
The entry is:
Judgment affirmed.
All concurring.
Notes
. Hoffstadt was originally charged with three counts of unlawful sexual contact. At the trial, the victim testified to two incidents. The court granted a motion for a judgment of acquittal on one of the counts. See M.R.Crim.P. 29(a). The jury returned a verdict of not guilty on one count.
. M.R.Evid. 412(a) provides:
In a criminal case in which a person is accused of rape, gross sexual misconduct, or sexual abuse of a minor, reputation or opinion evidence of past sexual behavior of an alleged victim of such crime is not admissible.
. M.R.Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. It should be noted that the evidence did come in indirectly. On cross-examination, defense counsel questioned the victim as follows:
Q: And your mom asked you about what happened?
A: Yes.
Q: So you blamed [the defendant] for showing you how to do that, right?
A: Yes and he did that.
Q: He wasn't the only one though?
A: No.
. M.Bar R. 3.7(e)(2)(v) provides:
(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:
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(v) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but a lawyer may argue, on the lawyer’s analysis of the evidence, for any position or conclusion with respect to the matters stated therein.
