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State v. Pozzuoli
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 91
Docket:  SAG-96-311
Submitted on briefs February 26, 1997 
Decided  May 5, 1997




	[¶1]  Vincent Pozzuoli appeals from the judgment entered in the
Superior Court (Sagadahoc County, Perkins, A.R.J.) following jury verdicts
finding him guilty of assault but not guilty of unlawful sexual contact. 
Pozzuoli contends that the trial court committed obvious error when it
instructed the jury regarding the elements of offensive physical contact, and
that the jury's verdicts are logically irreconcilable.  We affirm the judgment.
	[¶2]  Pozzuoli is a gymnastics coach in Connecticut.  In the summer of
1994 Pozzuoli suggested that the victim, one of Pozzuoli's students who was
then eleven years old, attend a week-long gymnastics camp in Maine. 
Pozzuoli arranged for the two of them to stay with a friend.  According to the
victim's testimony, Pozzuoli approached him during their first night in
Maine.  Pozzuoli reached under the sleeping bag covering the victim and ran
his hands over the victim's legs.  The victim stayed silent and pretended to
be asleep.  Pozzuoli moved his hands over the victim's thighs and around his
hip area.  At one point, Pozzuoli slid his hand under the victim's boxer
shorts and put his hand over the victim's penis, then slowly moved his hand
back down the victim's leg.  Pozzuoli then licked the victim's hand and
touched the lower part of his legs at which point the victim kicked Pozzuoli
in the neck to make him stop.  
	[¶3]  Pozzuoli was indicted for unlawful sexual contact (Class C) in
violation of 17-A M.R.S.A. § 255{1} and assault (Class D) in violation of 17-A
M.R.S.A. § 207.{2}  At the trial, Pozzuoli denied any wrongdoing and stated
that nothing unusual happened while he and the victim were in Maine.  The
trial court instructed the jury on the elements of unlawful sexual contact and
assault.  When defining "offensive physical contact" as an element of
unlawful sexual contact the court stated:

	Offensive physical contact is defined as knowingly
intending bodily contact or unlawful touching done in such a
manner as would reasonably be expected to violate the person or
dignity of the victim.  

	It's something less than bodily injury . . . but requires more
than a mere touching of another.  And basically its a question of
was the contact under the circumstances such that a reasonable
person would find it to be offensive.  

	You may consider what a reasonable person might consider
under the circumstances to be offensive as well as the subjective
interpretation of the contact as a particular victim might testify
to during the course of the trial.  

The court further instructed the jury that there was no evidence of bodily
injury and that a finding of assault would have to be based on offensive
physical contact as defined by the court in the context of unlawful sexual
	[¶4]  After a short period of deliberation, the jury requested that the
indictment be read to them again and that the court go over the elements of
each offense.  The court gave the jury the requested instructions but did not
repeat the definition of offensive physical contact.  The jury found Pozzuoli
guilty of assault but not guilty of unlawful sexual contact.
	[¶5]  Pozzuoli contends that the court erred by instructing the jury
that it could consider the victim's subjective interpretation of Pozzuoli's
contact when determining whether offensive physical contact had occurred. 
He also argues that the court failed to instruct the jury on each element of
the charged offenses because the court did not provide additional
instruction on the definition of offensive physical contact when the jury
requested reinstruction.
	[¶6]  When, as here, a defendant challenges a court's jury instructions
without an objection to those instructions in the trial court, we review the
instructions only for obvious error.  State v. Googins, 640 A.2d 1060, 1062
(Me. 1994) (citation omitted).  "[W]e review the instructions as a whole to
ensure that they informed the jury correctly and fairly in all necessary
respects of the governing law[,]" and "take into consideration the total
effect created by all the instructions and the potential for juror
misunderstanding."  State v. Daniels, 663 A.2d 33, 36 (Me. 1995)
(quotations omitted).  
	[¶7]  Viewed as a whole, the trial court's instructions correctly
defined offensive physical contact.  We held in State v. Boone, 563 A.2d 374,
378 (Me. 1989), that offensive physical contact in the context of unlawful
sexual contact is not defined in subjective terms.  "Although the victim's
reaction to the contact is relevant, it is not determinative of whether
contact is offensive."  Id. (citing State v. Bushey, 425 A.2d 1343, 1346-47
(Me. 1981)).  Here, the court accurately stated that the question is whether
a reasonable person would find the contact to be offensive, and that the jury
could consider what a reasonable person might perceive to be offensive as
well as the victim's subjective interpretation of the contact.  The court's
instructions did not improperly emphasize the victim's subjective
	[¶8]  Nor did the court fail to instruct the jury on the essential
elements of the charged offenses.  The court's second set of instructions
included the definitions for sexual contact and an intentional act, discussed
the culpable mental state necessary to establish assault and the meaning of
the term "beyond a reasonable doubt."   The court did not commit obvious
error by failing to provide reinstruction about the definition of offensive
physical contact because viewing the instructions in their entirety, there is
no possibility that the jury was misled by the court's reinstruction.  See
State v. Huntley, 681 A.2d 10, 14 (Me. 1996),  cert.  denied, 117 S. Ct. 702
(1997) (court's refusal to include reinstruction on the presumption of
innocence in response to the jury's request to be reinstructed regarding
reasonable doubt and the term "almost certain" did not create possibility
that jury was misled by reinstruction and was not obvious error).
	[¶9]  Pozzuoli contends that the jury's verdicts are logically
irreconcilable. He reasons that the jury's acquittal on the charge of unlawful
sexual contact manifests the jury's finding that he did not commit offensive
physical contact and that he therefore cannot be guilty of assault, which also
requires offensive physical contact as an element of the offense.  We
disagree.  Even if the verdicts were inconsistent, we recently held that
"[m]ere inconsistency between guilty and not guilty verdicts on separate
counts of a single indictment will not render the guilty verdict invalid[,]"
and we will affirm the conviction if there is sufficient evidence to support it. 
State v. Finnemore, 1997 ME 44, ¶ 9, __ A.2d __.  Here, the victim's
testimony about the incident provided the jury with sufficient evidence to
find that Pozzuoli committed the crime of assault.
	The entry is:
					Judgment affirmed.
Attorneys for State: Attorney for defendant: Geoffrey Rushlau, District Attorney Michael P. Turndorf, Asst. Dist. Atty. P O Box 246 Bath, ME 04530 Benet Pols, Esq. P O Box 791 Brunswick, ME 04011-0791
FOOTNOTES******************************** {1}. 17-A M.R.S.A. § 255(1)(Supp. 1996) defines unlawful sexual contact as follows: 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 . . . . {2}. 17-A M.R.S.A. § 207 (1)(1983) defines assault as follows: A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another.