Jeremy Allen's appeal = decision upheld

Relates to:
Date: 2006-03-02

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2006 ME 21
Docket: And-05-201
Argued: November 14, 2005
Decided: March 2, 2006
Reporter of Decisions
Decision: 2006 ME 21
Docket: And-05-201
Argued: November 14, 2005
Decided: March 2, 2006

Panel:
SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and
SILVER, JJ.

STATE OF MAINE
v.
JEREMY ALLEN

CALKINS, J.

[¶1] Jeremy Allen appeals from a judgment of conviction of assault (Class
C), 17-A M.R.S.A. § 207(1)(B) (Supp. 2003), entered after a jury trial in the
Superior Court (Androscoggin County, Gorman, J.). Allen argues that (1) the
evidence was insufficient to convict him; (2) the court erred when it admitted
statements that Allen’s wife made to an emergency medical technician; (3) the
prosecutor’s conduct and statements during closing argument amounted to
prosecutorial misconduct; and (4) the court erred when it allowed into evidence a
full-body photograph of the victim. We affirm the conviction, and the only issue
that merits discussion concerns the admissibility of the photograph of the victim.

I. BACKGROUND
[¶2] The victim, Allen’s son, was twenty-one months old at the time of the
assault on February 13, 2003. The child died two days later, as the result of a
separate incident that occurred on February 14. The child’s mother, Allen’s wife,
was convicted of manslaughter for causing the child’s death.1

[¶3] The evidence at Allen’s trial demonstrated that on the evening of
February 13, the child became angry and defiant when Allen and his wife told the
child to pick up toys. Allen attempted to redirect the child’s behavior, but the
behavior became a temper tantrum. Allen spanked the child with a wooden spoon,
first on the diaper and then on the child’s bare bottom. Allen testified that he did
this no more than three times. The child finally calmed down when Allen’s wife
splashed water on his face. The next day, while Allen was in New Hampshire on
business, he telephoned his wife, who told him that there was visible bruising on
the child’s bottom.

[¶4] Paramedics were called to the Allen residence around 10:00 P.M. on
February 14. The child was unconscious, unresponsive, and breathing with great
labor. The paramedics transported him to a hospital, and after he was stabilized, he
was taken to Maine Medical Center, where he was diagnosed with severe head
trauma and underwent extensive neurosurgery. After surgery, a pediatrician who

1 We affirmed the manslaughter conviction of Sarah Allen in State v. Allen, 2006 ME 20, ---A.2d ---.

specializes in child abuse examined the child and at Allen’s trial, the pediatrician
testified about the bruises. Three photographs were admitted into evidence, which
depict bruising on the child’s buttocks. Two of the photographs show only a
portion of the child’s body, but one shows the child’s entire body, including the
head bandage that was placed on the child after surgery. All three photographs
show tubing and other medical apparatus attached to the child.
testified about the bruises. Three photographs were admitted into evidence, which
depict bruising on the child’s buttocks. Two of the photographs show only a
portion of the child’s body, but one shows the child’s entire body, including the
head bandage that was placed on the child after surgery. All three photographs
show tubing and other medical apparatus attached to the child.

[¶5] Allen was indicted for the offense of assault and pleaded not guilty.
Through motions in limine, he asked the court for rulings on various evidentiary
matters. He sought to exclude a videotape and all photographs taken by the State
or medical personnel, depicting bruises on the child. He contended that the
videotape and photographs were not relevant and, if relevant, their probative value
was outweighed by the danger of unfair prejudice and the danger of misleading the
jury. At the motion hearing, Allen argued that the danger of unfair prejudice came
in part from the depiction in the photographs of the medical apparatus on the
child’s body, which, he contended, would inflame the jury’s emotions. The court
promptly issued an order denying the motions with regard to the photographs and
videotape, stating that “their probative value greatly outweighs any possible
prejudice.” The court added:

The issue for the jury to decide is whether [Allen’s] actions amounted

to an exercise of parental discipline or a criminal event. In order to

make that decision, the jurors will need to consider, among other

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factors, the effect of the spanking on [the child]. The photographs and
videotape contain direct evidence of those effects.
[¶6] Approximately one week after the decision on the motions in limine,

jury selection was held, but the court was unable to impanel a jury, and the case
was continued. Four months later, the court and parties conferred on several
pretrial issues and set jury selection for the following Monday. Immediately prior
to jury selection, a further conference of counsel took place. The court stated:

[O]ver the weekend I reviewed the videotape again, which the [S]tate
had intended to offer to show [the child’s] size, and I understand this
morning that the parties have reached an agreement that the videotape
will stay out, but that a photograph of [the child’s] entire body at the
hospital before death will go in in lieu of that videotape.

Both the prosecutor and counsel for Allen confirmed that they had reached an
agreement. During the testimony of the pediatrician, the full-body photograph was
admitted without objection, and the State did not offer the videotape into evidence.

[¶7] The jury convicted Allen of assault, and he was sentenced to eighteen
months incarceration with all but six months suspended and a probationary period
of two years.

II. DISCUSSION
[¶8] Allen contends that the court should not have admitted the photograph
that showed the child’s full body.2 Allen argues that the photograph was not

2 Allen does not raise any issue on appeal concerning the other two photographs that were admitted.

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relevant, M.R. Evid. 401, 402, and its prejudicial effect outweighed any probative

value, M.R. Evid. 403.

[¶9] Although the applicable standard of review is generally dependant

upon whether the alleged error is preserved, we do not need to determine whether

Allen preserved his objection to the photograph. We assume that Allen’s motion

in limine served to preserve the objection, and we apply the abuse of discretion

standard of review, which is more beneficial to Allen than the obvious error

standard.3 Even with the more beneficial standard of review, Allen cannot prevail

in this appeal because the trial court acted well within its discretion by ruling on

the motion in limine to admit the photograph.

3 When a photograph is admitted over a Rule 403 objection, we review the admission of the evidence
for abuse of discretion. See State v. Kalex, 2002 ME 26, ¶ 10, 789 A.2d 1286, 1289. Generally, an
objection to the admission of evidence based on M.R. Evid. 403 must be made at trial in order to preserve
the error. See State v. Thomes, 1997 ME 146, ¶ 7, 697 A.2d 1262, 1264. However, we have held that a
motion in limine may preserve a Rule 403 objection to the admission of evidence when the court’s ruling
on the motion is “unequivocally” final. State v. Thongsavanh, 2004 ME 126, ¶ 8 n.8, 861 A.2d 39, 42.

When an evidentiary error is unpreserved, we apply the obvious error standard. See State v.
Lobozzo, 1998 ME 228, ¶ 8, 719 A.2d 108, 110; M.R. Crim. P. 52(b). The obvious error standard
requires either a determination or an assumption that an error was made, and then a determination as to
whether the error was obvious and affected substantial rights. See, e.g., State v. Dube, 522 A.2d 904, 907
(Me. 1987).

The State suggests that the alleged error in this case is unreviewable because prior to jury selection,
Allen agreed to admit the photograph. See United States v. Olano, 507 U.S. 725, 733 (1993) (stating that
waiver of rights under a legal rule, as distinguished from forfeiture, extinguishes an error); see also State

v. Cleaves, 2005 ME 67, ¶¶ 10-15, 874 A.2d 872, 873-74 (stating that a party’s approval of the court’s
proposed jury instructions precludes that party from subsequently arguing on appeal that the court’s
failure to include certain instructions amounted to obvious error); State v. Rega, 2005 ME 5, ¶¶ 16-17,
863 A.2d 917, 922 (holding that where the defendant affirmatively requested that the evidence be
presented to the jury, we would not review any error resulting from defendant’s trial strategy). The
procedures required for a court to conclude that a waiver was made depend on the right at stake, see
Olano, 507 U.S. at 733, and we have not previously opined on those procedures in circumstances similar
to this case.

[¶10] In State v. Crocker, 435 A.2d 58 (Me. 1981), we articulated the three
determinations that a court should make when it rules on the admissibility of
photographs. There we affirmed Crocker’s conviction for murder of his five-yearIn State v. Crocker, 435 A.2d 58 (Me. 1981), we articulated the three
determinations that a court should make when it rules on the admissibility of
photographs. There we affirmed Crocker’s conviction for murder of his five-yearold
stepson. Medical personnel testified to the bruises and burns on the child’s
body and to the cause of death from malnutrition and a head injury. Crocker, 435
A.2d at 73. The trial court admitted photographs that showed the child’s condition,
over the defendant’s objection that they were unfairly inflammatory. We said that
photographs are admissible if they are (1) accurate depictions; (2) relevant; and (3)
if their probative value is not outweighed by any tendency toward unfair prejudice.
Id. at 75. There was unchallenged testimony in Crocker that the photographs
accurately portrayed what they purported to portray. They were relevant because
they tended to show that Crocker had engaged in an ongoing course of conduct
toward the child and refuted any defense that Crocker’s conduct was accidental.
They also illustrated the medical testimony and helped the jury assess the
defendant’s culpability. Id. Furthermore, the photographs were not merely
cumulative of the medical testimony because they “conveyed relevant information
to the jury in a much more complete and meaningful form than could the almost
clinical words of the doctors and nurses.” Id. at 76. Although the photographs
could be considered “gruesome,” that fact did not make them inadmissible,
because the salient issue was whether their probative value was “substantially

outweighed by the danger of unfair prejudice.” Id. (citations omitted). We said
that the trial court did not abuse its discretion in admitting the photographs.
unfair prejudice.” Id. (citations omitted). We said
that the trial court did not abuse its discretion in admitting the photographs.

[¶11] In this case, the accuracy determination outlined in Crocker, is met in
that there is no suggestion that the full-body photograph did not depict the child
accurately. Indeed, the inference from Allen’s argument is that the photograph
depicts the child too accurately by showing everything, including the head bandage
and medical apparatus.

[¶12] All three photographs were relevant both on the issue of the assault
and Allen’s defense, which was that the spanking was justified as parental
discipline. See 17-A M.R.S. § 106(1) (2005).4 A fact that is of consequence in a
parental discipline defense is whether the force used by the parent results in
temporary marks and transient pain. State v. York, 2001 ME 30, ¶ 14, 766 A.2d
570, 574. The size and color of the bruises on the child were pertinent to this
issue, and the photographs show that it was more probable than not that the marks
were not temporary. Furthermore, they were relevant in weighing Allen’s
credibility with respect to his testimony that he spanked the child only three times
and was not trying to hurt him. The full-body photograph also showed the
proportionate sizes of the bruises to the whole child, and it demonstrated his size

Title 17-A M.R.S. § 106(1) (2005) provides in pertinent part: “A parent . . . responsible for the long
term general care and welfare of a person is justified in using a reasonable degree of force against such
person when and to the extent that he reasonably believes it necessary to prevent or punish such person’s
misconduct.”

overall. His size was relevant to the reasonableness of the force that Allen used to
strike him. The wooden spoon that Allen used to spank the child was admitted into
evidence, and the combination of the spoon and the size of the bruises in the full-
body photograph allowed the jury to further assess Allen’s story.
strike him. The wooden spoon that Allen used to spank the child was admitted into
evidence, and the combination of the spoon and the size of the bruises in the full-
body photograph allowed the jury to further assess Allen’s story.

[¶13] The third determination in the analysis set forth in Crocker for the
admissibility of photographs is a Rule 403 inquiry: whether the “probative value is
substantially outweighed by the danger of unfair prejudice.” M.R. Evid. 403. To
sustain a Rule 403 objection, the prejudice “must be more than simply damage to
the opponent’s cause.” State v. Ardolino, 1997 ME 141, ¶ 10, 697 A.2d 73, 78
(citations omitted). It must be evidence that has “an undue tendency to move the
tribunal to decide on an improper basis, commonly, though not always, an
emotional one.” Id.

[¶14] In performing the balancing that Rule 403 requires, the trial court
found that the probative value was significant on the issue of the physical effects of
the spanking. The court also made a finding that none of the photographs were
gruesome, which finding is not clearly erroneous. The court concluded that any
possible prejudice was outweighed by the probative value.

[¶15] Allen argues that the full-body photograph shows that the child’s
condition was grave and allowed the jury’s passions to be inflamed. However, the
fact that the child was taken to the hospital on February 14, where he was treated

for his life-threatening injuries, was presented to the jury beginning with the first
witness. In fact, prospective jurors were informed that the child had died and that
the mother was charged with causing the child’s death. The pediatrician testified
about the child’s massive head injury, and the deputy chief medical examiner
testified about the autopsy he performed on the child. Thus, the jury was well
aware of the head injury and serious condition of the child when he was in the
hospital. Because these facts were already before the jury, the depiction in the full-
body photograph of the head bandage and medical apparatus would not have
unduly caused the jury to decide the case on an emotional or other improper basis.
-threatening injuries, was presented to the jury beginning with the first
witness. In fact, prospective jurors were informed that the child had died and that
the mother was charged with causing the child’s death. The pediatrician testified
about the child’s massive head injury, and the deputy chief medical examiner
testified about the autopsy he performed on the child. Thus, the jury was well
aware of the head injury and serious condition of the child when he was in the
hospital. Because these facts were already before the jury, the depiction in the full-
body photograph of the head bandage and medical apparatus would not have
unduly caused the jury to decide the case on an emotional or other improper basis.

[¶16] Although photographs add a dimension not present in a verbal,
clinical description of injuries, which is often precisely why they have probative
value, there was nothing in the full-body picture, including the bandage and
medical apparatus, that was particularly shocking. If there was any risk that the
contested photograph would cause a jury to decide the case on an emotional or
other improper basis, that risk was minimal at best and did not substantially
outweigh its probative value.

[¶17] Any case with allegations of child abuse evokes emotions, but we
allow photographs of abused children because we recognize that their probative
value can, in any given case, outweigh the danger of unfair prejudice. See, e.g.,
State v. Conlogue, 474 A.2d 167, 171 (Me. 1984) (affirming the admissibility of

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photographs showing bruises covering the child’s torso); State v. Conwell, 392
A.2d 542, 544 (Me. 1978) (affirming the admission photographs of the child with
bruises, describing them as “unpleasant to view”).
photographs showing bruises covering the child’s torso); State v. Conwell, 392
A.2d 542, 544 (Me. 1978) (affirming the admission photographs of the child with
bruises, describing them as “unpleasant to view”).5 If we were to rule in this case
that the court abused its discretion in allowing the full-body photograph, few
graphic photographs would survive a Rule 403 objection.

[¶18] The court did not abuse its discretion in ruling in the motion in limine
that the photographs were admissible and in admitting the full-body photograph
into evidence.

The entry is:

Judgment affirmed.
Attorneys for State:

G. Steven Rowe, Attorney General
Donald W. Macomber, Asst. Atty. Gen. (orally)
Lisa P. Marchese, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006
Attorney for defendant:

Wendy Moulton Starkey, Esq. (orally)
Erwin, Ott, Clark, Orso & Campbell

P.O. Box 545
York, ME 03909-0545

5 There are numerous criminal cases in which we have held that a court did not abuse its discretion in
admitting photographs depicting the victim’s injuries. Field & Murray, Maine Evidence § 403.5 at 113

n.145 (2000 ed. 1999). Even gruesome autopsy photographs are admissible. See State v. Lockhart, 2003
ME 108, ¶ 46, 830 A.2d 433, 448. We are aware of only one case in which the admission was error,
albeit harmless, and that photograph, which was found to be gruesome, showed the bloody, deceased
victim with his face “contorted by the agonies of a violent death.” State v. Conner, 434 A.2d 509, 511-14
(Me. 1981).

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