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State v,. Cary Young
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 144
Docket:	Ken-99-211
on Briefs:	June 27, 2000
Decided:	July 25, 2000




	[¶1]  Cary Young appeals from the judgment entered by the Superior
Court (Kennebec County, Studstrup, J.) on a jury verdict finding him guilty of
gross sexual misconduct in violation of 17-A M.R.S.A. § 253 (1988),{1}
repealed and replaced by P.L. 1989, ch. 401.  Young argues on appeal that he
was denied a fair trial by virtue of comments made by the prosecutor during
the State's closing arguments and that the trial court should have ordered a
mistrial.  Because it was not obvious error for the trial court to fail to order a
mistrial on its own initiative, we affirm.
	[¶2]  Young was charged with one count of gross sexual misconduct
following revelations by his niece that he had molested her when she was
between the ages of five and seven years old.  At trial, the victim testified
about the first time that Young had sexual contact with her and stated that
he would make similar contact with her almost every time he would baby-sit
her.  She also testified about the last contact of this nature which occurred
in the latter half of 1988 and which formed the basis of the charge against
	[¶3]  The victim's mother testified about a confrontation she had with
Young, her brother, after she learned of the abuse.  According to the mother,
Young admitted to the abuse by nodding his head "yes" when asked whether
he had done the things the victim had described.{2}  This testimony was
contradicted by the testimony of the victim's grandfather who was also
present during the confrontation.
	[¶4]  Following the presentation of evidence, both the State and Young
made their closing arguments.  In the course of his closing argument and
rebuttal argument, the prosecutor made several comments to which Young
objected.  Each time, the court sustained Young's objection and in one
instance issued a curative instruction immediately following the
objectionable comment.  The court also admonished the prosecutor sua
sponte on one occasion.  Following both closing arguments, the court issued
its jury instructions in which it specifically reminded the jury that the
closing arguments were not evidence in the case and instructed the jury to
disregard all expressions of personal opinion by either counsel regarding the
quality of the testimony presented.  Young did not move for a mistrial at any
time prior to the jury reaching its verdict.  The jury returned a verdict of
guilty and Young now appeals to this Court.
	[¶5]  Because Young failed to move for a mistrial prior to the jury
returning its verdict, we review for obvious error.  See State v. Rose, 622
A.2d 78, 79 (Me. 1993).  "Error is obvious only when it is so highly
prejudicial and so taints the proceedings as virtually to deprive the
defendant of a fair trial."  State v. Eaton, 669 A.2d 146, 150-51 (Me. 1995)
(stating that, although six prosecutorial statements were "close to the line,"
they did not rise to the level of depriving the defendant of a fair trial).
	[¶6]  As we have noted previously, prosecutors are held to a higher
standard regarding their conduct during trial because they represent the
State, see State v. Ashley, 666 A.2d 103, 105 (Me. 1995), and because they
have an obligation to ensure that justice is done, as opposed to merely
ensuring that a conviction is secured, see State v. Wallace, 1997 ME 51, ¶ 5,
691 A.2d 1195, 1197.  When analyzing alleged prosecutorial misconduct, we
view the comments of the prosecutor as a whole, see State v. Weisbrode,
653 A.2d 411, 416 (Me. 1993), and look at the incidents of misconduct both
in isolation and in the aggregate, see State v. Risio, 388 A.2d 896, 901 (Me.
1978); see also United States v. Hernandez, 865 F.2d 925, 930 (7th Cir.
1989) (viewing prosecutor's alleged improper arguments individually and in
the aggregate); Mills v. United States, 599 A.2d 775, 786 (D.C. 1991)
(examining prosecutor's comments both standing alone and in the
	[¶7]  Doing so in this case, and taking into consideration the
ameliorative steps taken by the court, leads us to the conclusion that the
trial court did not commit obvious error by failing to declare a mistrial sua
sponte.  Cf. Robert W. Clifford, Identifying and Preventing Improper
Prosecutorial Comment in Closing, 51 Me. L. Rev. 241, 244 & 257-67 (1999)
(noting the crucial role of the trial court as a check to prosecutorial
excesses, it being in the best position to assess the "feel" of the trial and to
take the necessary corrective action when misconduct occurs to undo the
prejudice).  We cannot say that the comments, even viewed in the aggregate,
were so highly prejudicial or that the court's ameliorative steps were so
ineffective as to deny Young a fair trial and as to necessitate a declaration of a
mistrial by the trial court on its own initiative.  Nor does it appear from the
record that the comments made by the prosecutor reflect bad faith on his
part.  See State v. Bennett, 658 A.2d 1058, 1063 (Me. 1995) (noting that
only where there are exceptionally prejudicial circumstances or
prosecutorial bad faith will curative instructions be deemed inadequate to
cure the prejudice).
	The entry is:
			Judgment affirmed.

Attorneys for State: David W. Crook, District Attorney alan P. Kelley, Deputy Dist. Atty 95 State Street Augusta, ME 04330 Attorney for defendant: Walter F. McKee, Esq. Lipman & Katz, P.A. P O Box 1051 Augusta, ME 04332-1051
FOOTNOTES******************************** {1} . Section 253 at the time in question provided in relevant part: § 253. Gross sexual misconduct A person is guilty of gross sexual misconduct 1. If he engages in a sexual act with another person and: . . . . B. The other person, not his spouse, has not in fact attained his 14th birthday. 17-A M.R.S.A. § 253 (1988), repealed and replaced by P.L. 1989, ch. 401. {2} . Young is deaf and had developed a system of communication with his family.