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State v. Beaudet
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 133									
Docket:  	And-96-402							
on Briefs:	May 13, 1997					
Decided: 	June 12, 1997




	[¶1]  Manley Beaudet appeals from the judgment entered in the
Superior Court (Androscoggin County, Delahanty, J.) following a jury verdict
finding him guilty of unlawful sexual contact (Class C), 17-A M.R.S.A. § 255
(1)(C) (Supp. 1988), amended by P.L. 1989, ch. 401, § A(6).{1}  He argues the
evidence is insufficient to sustain his conviction, or alternatively, the
incompleteness of the record requires that a new trial be ordered.  He
further argues the court abused its discretion by denying his request for an
updated presentence investigation.  Beaudet also appeals from the judgment
entered following his plea of guilty to the offense of failure to appear (Class
C), 15 M.R.S.A. § 1091 (Supp. 1996),{2} but fails to argue the matter on
appeal.  We affirm the judgments.
	[¶2]  Testimony at Beaudet's trial established that in August 1988
Beaudet, age 28, went "skinny-dipping" at a swimming hole in Poland with
two boys-the victim, age nine, and his younger brother, age eight.  The
victim testified that while in the water Beaudet picked him up, touched his
"privates" and asked "Can I play with this?"  The boy replied "no" and
Beaudet put him down.  The victim also testified that Beaudet gave each boy
a dollar so that they would not tell their mother.  The victim's younger
brother confirmed these events, except the brother did not recall Beaudet's
statement.  A deputy sheriff testified that on the day after the crime Beaudet
admitted he may have touched the boy's genitals by accident while lifting
him over a log in the water, but denied giving the children money, claiming
the boys had found the two dollars at the swimming hole.  At the trial
Beaudet repeated the story he had told the deputy sheriff and denied asking
the victim if he could play with anything.
	[¶3]  After Beaudet was convicted the court ordered a presentence
investigation and report.  The report was completed and sentencing was
scheduled for March 1989, but Beaudet failed to appear.  Almost seven years
later he was apprehended in Florida and extradited to Maine.  In April 1996
the court denied Beaudet's request for an updated presentence
investigation, but allowed him to submit supplemental information and
materials and delayed sentencing for about one month so that he could do
so.  On May 20, 1996, Beaudet pleaded guilty to the offense of failure to
appear and was sentenced for both that crime and the unlawful sexual
contact conviction.  Beaudet was sentenced to two and one-half years with
all but one year suspended and three years probation for the unlawful sexual
contact conviction, and to six months for his failure to appear, to be served
	[¶4]  Beaudet contends the evidence is insufficient to sustain his
conviction for unlawful sexual contact because the State failed to establish
beyond a reasonable doubt that he intentionally touched the boy in a sexual
manner, an element of the crime.  He contends the evidence establishes
merely that he touched the boy accidently, and because his "explanation" is
sufficiently credible, it necessarily raises a reasonable doubt.  Beaudet's
contention is without merit.  When examining the sufficiency of the
evidence, we review it in the light most favorable to the State to determine
whether a trier of fact rationally could find beyond a reasonable doubt every
element of the offense charged.  State v. Marden, 673 A.2d 1304, 1311 (Me.
1996).  Viewing the evidence in such light reveals the jury rationally could
find Beaudet groped the boy's genitals and asked if he could play with them;
such conduct constitutes unlawful sexual contact.
	[¶5]  Beaudet next argues he is entitled to a new trial because the
record is missing various portions of the transcript, including sidebar
conferences on objections, in-chambers discussions about jury instructions,
oral argument on the defense's motions for acquittal, and the portion of the
evidence read back to the jury at its request.  Beaudet contends he is unable
to ascertain potential grounds for appeal due to the missing portions of the
trial record and the passage of considerable time since the trial.  Again,
Beaudet's contention is without merit.  First, the omissions are either
reflected in other parts of the record or entail argument rather than
evidence and are not crucial for appellate review.  Second, any
inconvenience incurred by Beaudet because some reporter's notes are
missing is the result of the long hiatus between the trial and the appeal, a
situation entirely of Beaudet's own making.  This is not the type of prejudice
meriting a new trial. 
	[¶6]  Finally, Beaudet argues the court abused its discretion by denying
his request for an updated presentence investigation.  He contends his
personal life significantly improved while living as a fugitive in Florida and
that an updated psychological profile, among other things, would have more
accurately reflected his current circumstances.  The court's decision to
order a presentence investigation and report is reviewed for an abuse of
discretion.  See State v. Dyer, 371 A.2d 1079, 1083 (Me. 1977) (whether to
order a presentence investigation and report is within the discretion of the
trial court); M.R. Crim. P. 32(c).  Here, the court allowed Beaudet to present
supplemental information and material prior to sentencing, and despite the
more than seven year delay between conviction and sentencing, provided
him an additional month to prepare his submissions.  In these
circumstances we find no abuse of discretion.  Cf. State v. Tellier, 580 A.2d
1333, 1336 (Me. 1990) ("[A] strong case is made for the necessity of
[ordering a presentence investigation and report] when the essential
information is not supplied by the parties or made known to the court by
some other means . . . .") (emphasis added). 
	The entry is:
					Judgments affirmed.
Attorneys for State: Norman R. Croteau, Distict Attorney Craig E. Turner, Deputy Dist. Atty. 2 Turner Street, Auburn, ME 04210 Attorneys for defendant: Gerard O. Fournier, Esq. Michael W. Marley, Esq. Hark·Andrucki·Fournier P O Box 7120 Lewiston, ME 04243-7120
FOOTNOTES******************************** {1}. 17-A M.R.S.A. § 255 (1)(C) (Supp. 1988), amended by P.L. 1989, ch. 401, § A(6), provides that a person is guilty of unlawful sexual contact if he intentionally subjects another person to any sexual contact, and "[t]he other person, not his spouse, has not in fact attained his 14th birthday and the actor is at least 3 years older." {2}. 15 M.R.S.A. § 1091 (Supp. 1996) provides in pertinent part: "A defendant who has been admitted to . . . post-conviction bail and . . . fails to appear as required . . . is guilty of a Class C crime if the underlying crime was punishable by a maximum period of imprisonment of one year or more."