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State v. Jordan
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	1997 ME 101
Docket:  	Cum-96-108
Argued :	February 7, 1997
Decided:	May 15, 1997




	[¶1]  George Jordan appeals from the judgment entered in the
Superior Court (Cumberland County, Cole, C.J.) following a jury verdict
finding him guilty of reckless conduct with the use of a dangerous weapon
(Class C) in violation of 17-A M.R.S.A. §§ 211, 1254(2) (1983).  Because we
agree with Jordan's contention that the trial court erred in permitting
testimony of prior bad acts in violation of M.R. Evid. 404(b), we vacate the
	[¶2]  The record and evidence received at trial reveal the following: 
Clover Jordan, Jordan's estranged wife, received three harassing phone calls
in the early morning hours of April 24, 1994.  She reported the calls to the
Portland Police and said that she suspected Jordan as the caller.  The South
Portland Police checked out the location where the phone calls originated, a
pay phone at 441 Western Avenue in South Portland.  The officers did not
observe anyone at the pay phone, but they proceeded to Jordan's home at
approximately 2:30 a.m.
	[¶3]  The officers made phone contact with Jordan and also
knocked on his door on several occasions.  Jordan refused to comply with
the officer's requests to open his door and speak with them about the phone
calls.  Jordan responded to the officer's presence by turning up the music
on his stereo.  The officers received information that there was an
outstanding warrant for his arrest for a failure to appear at a hearing on a
charge of carrying a concealed weapon.  The officers at the scene then
decided, based on a complaint from Jordan's neighbor regarding the loud
music, to execute the outstanding arrest warrant.  As the officers forcibly
entered Jordan's darkened apartment, he was observed pointing a shotgun
at one of the officers.  Two of the officers fired shots and struck Jordan in
the arm.  Jordan's shotgun was found to be loaded.
	[¶4]  Jordan was indicted on charges of criminal threatening with
the use of a dangerous weapon in violation of 17-A M.R.S.A. §§ 209, 1252(4)
(1983){2} and reckless conduct with the use of a dangerous weapon in
violation of 17-A M.R.S.A. §§ 211, 1252(4) (1983).{3}  Prior to the trial,
Jordan moved in limine, pursuant to M.R. Crim. P. 12(c), seeking to restrict
the testimony of Clover Jordan.  Jordan sought to prohibit her from
testifying about the three phone calls he allegedly made on April 24, 1994,
and the history of his harassment against her, that began in 1993.  The court
denied Jordan's motion and concluded that the prior bad acts were
admissible to prove Jordan's intent, motive, and state of mind as he
confronted the officers.
	[¶5]  At the trial, Jordan continued to object to the testimony of
Clover who testified about incidents as long as a year and a half before the
present charges, when Jordan had harassed her with phone calls, had
followed her in a vehicle and attempted to run her off the road, and had sat
outside her house in a vehicle watching her home.  The court denied
Jordan's motion for acquittal at the close of the State's case and at the close
of all the evidence.  This appeal followed the jury verdict finding Jordan
guilty of reckless conduct with the use of a dangerous weapon.{4}
	[¶6]  Evidence of other crimes or wrongs is not admissible to prove
the character of a person to show that he acted in conformity therewith. 
M.R. Evid. 404(b).{5}  Nevertheless, such evidence may be admissible if it is
"relevant to specified facts and propositions" involved in the case.  Field &
Murray, Maine Evidence  404.4 at 4-44 (1993).  In this context, the
foundational test for admissibility is relevance.  State v. Wallace, 431 A.2d
613, 616 (Me. 1981).  Evidence of prior bad acts is relevant if it casts light
on the nature of the act for which the defendant is being prosecuted, by
showing motive, intent, knowledge, absence of a mistake, common scheme,
identity or a system or general pattern.  Id. See also M.R. Evid. 404(b)
advisers' note; State v. Nadeau, 653 A.2d 408, 411 (Me. 1995) (evidence of
prior sexual acts admissible to show motive, intent or opportunity to commit
offense); State v. Heald, 393 A.2d 537, 542 (Me. 1978) (defendant's
attempted robbery of murder victim admissible to show design, motive,
knowledge, and identity).
	[7]  To obtain a conviction, the State was required to prove, beyond
a reasonable doubt, that Jordan "recklessly created a risk of substantial risk
of bodily injury to another person."  17-A M.R.S.A.  209 (1983).  Although
evidence that three phone calls were made on April 24, 1994, would have
some relevance as to the occurrences on that same night, the testimony
about the prior bad acts Jordan had committed toward his estranged wife,
months or years earlier, was not relevant to show Jordan's motive, intent, or
state of mind at the time he allegedly pointed a gun at Officer Barlow. 
Contrary to the State's contention, the evidence of Jordan's prior bad acts
directed against his wife had no probative value in proving his guilt of the
later crime committed against someone else and, therefore, the court erred
in admitting Clover's testimony.  See State v. Robinson, 628 A.2d 664, 666
(Me. 1993) (question of relevancy of proffered evidence is reviewed under a
clear error standard). 
	[8]  Because Jordan preserved his objections, we review the alleged
trial errors pursuant to a harmless error standard.  M.R. Evid. 103(a); M.R.
Crim. P. 52(a).  Error is harmless only if it is highly probable that the error
did not affect the factfinder's judgment.  State v. Pelletier, 673 A.2d 1327,
1330 (Me. 1996).  The court erroneously allowed Clover to testify in detail
that Jordan had made fifteen or twenty harassing phone calls, that he had
followed her in a vehicle and nearly ran her off the road, and that he had
stalked her.  Because of the prejudicial nature of this testimony we are
unable to say that it is highly probable that the factfinder's judgment was not
affected.  The error, therefore, was not harmless.
	The entry is:
Judgment vacated.  Remanded for proceedings
consistent with the opinion herein.

Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. (orally) Howard O'Brien, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Michael E. Saucier, Esq. (orally) Thompson & Bowie P O Box 4630 Portland, ME 04112-4630
FOOTNOTES******************************** {1} Jordan additionally contends that his conviction must be set aside because the police entry into Jordan's home violated his Fourth Amendment rights. He also argues that the evidence is insufficient to support a conviction of reckless conduct with the use of a firearm. We are unpersuaded by those contentions. {2} 17-A M.R.S.A. § 209 (1983) provides: 1. A person is guilty of criminal threatening if he intentionally or knowingly places another person in fear of imminent bodily injury. 2. Criminal threatening is a Class D crime. 17-A M.R.S.A. § 1252(4) (1983) provides in part: 4. If the State pleads and proves that a Class B, C, D or E crime was committed with the use of a dangerous weapon then the sentencing class for such crime is one class higher than it would otherwise be. {3} Title 17-A M.R.S.A. § 211 (1983) provides: 1. A person is guilty of reckless conduct if he recklessly creates a substantial risk of serious bodily injury to another person. 2. Reckless conduct is a Class D crime. {4} The jury found Jordan not guilty of criminal threatening. {5} M.R. Evid. 404(b) provides: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he acted in conformity therewith.