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State v. Ali Almurshidy
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unlawful sexual contact (Class C), and furnishing
liquor to a minor (Class D) entered after a jury trial in the Superior Court
(Cumberland County, Crowley, J.). On appeal, Almurshidy challenges the
sufficiency of the evidence on the sexual assault counts and three evidentiary
rulings. Because we agree with Almurshidy that his mug shot should not
have been admitted in evidence, we vacate the judgment. Almurshidy also
appeals the judgment revoking his probation, which appeal we dismiss
because he has not properly pursued it.
[¶2] The indictment against Almurshidy alleges that the offenses
occurred on August 9, 1997, in Cumberland County. Specifically, he was
charged with engaging in a sexual act with the named victim, by direct
physical contact between his genitals and her genitals, and she submitted as
a result of compulsion. See 17-A M.R.S.A. § 253(1)(A) (Supp. 1998). He was
also charged with intentionally subjecting the victim to sexual contact to
which she submitted as a result of compulsion. See 17-A M.R.S.A.
§ 255(1)(H) (Supp. 1998). He was further charged with knowingly
furnishing liquor to the victim, who was a minor. See 28-A M.R.S.A.
§ 208(A) (Supp. 1998).
[¶3] The jury would have been justified in finding the following facts:
On the afternoon of August 9, 1997, in downtown Portland, Almurshidy saw
the victim, a seventeen-year-old girl whom he had met the night before at a
friend's apartment. The victim described herself at trial as a "street kid,"
meaning a young person who is homeless, stays on the streets during the
day and goes to a shelter at night. Almurshidy asked the victim if she
wanted to get drunk again, and she said yes. She then accompanied
Almurshidy and his friend Al-Shewaily in Almurshidy's car to Sebago. On the
way Almurshidy stopped to buy beer. They stopped at a clearing in the
woods in Sebago, and Al-Shewaily and the victim exited the car. Almurshidy
left in the car. The victim began drinking from a can of beer, and Al-
Shewaily asked her to have sex with him. He took a pink condom wrapper
out of his pocket. The victim said no, and Al-Shewaily apologized, saying he
would not ask her again.
[¶4] Almurshidy returned, and the two men conversed in a language
the victim could not understand. Al-Shewaily took a walk in the woods,
leaving Almurshidy alone with the victim. Almurshidy told the victim that
he wanted to marry her, and he repeatedly asked her to have sex with him.
She repeatedly refused. While she was up against a tree, and her pants were
down, Almurshidy touched her genitals with his hand. She testified that she
did not remember who pulled her pants down. She told Almurshidy to stop
and pushed him away. She pulled her pants up, sat on a rock and drank
more beer. Almurshidy exposed his penis, and she briefly touched it. He
put her down on the ground and pulled her pants off. Although she told him
not to, he got on top of her and touched her vagina with his penis. She
testified that "it hurt like hell." She told him to get off and unsuccessfully
tried to push him off. She poured beer on him, and he got up.
[¶5] The victim pulled up her pants and ran to the nearest building
where she asked to use the phone. Her request was denied, and she ran to
a restaurant where a waitress saw that she was very distraught and
frightened. The victim did not tell anyone at the restaurant what had
happened to her. A restaurant employee called the sheriff's office, and a
deputy arrived. He saw that she was crying, and he gave her a ride back to
Portland, to the shelter where she had been staying. She did not tell the
deputy that she had been assaulted or raped. She told him she had been
with two men who left her in the woods. Although she knew Almurshidy's
name, she did not tell the deputy.
[¶6] At the shelter, staff members saw that she was nervous, timid
and avoided people. She left the shelter and was found outside on the
sidewalk curled up in a ball. Later when a staff member asked her if she had
been raped, she nodded her head affirmatively. Staff members asked her
not to shower, but she did so anyway. There was no medical or rape
examination of the victim.
[¶7] Two days later the victim was interviewed by a sergeant from the
sheriff's office. She showed the sergeant the location of the clearing in
Sebago where he found a condom wrapper, beer cans and other items. The
sergeant showed the victim an array of six photographs, each of a different
male, and she identified Almurshidy as her assailant.
[¶8] A jury found Almurshidy guilty of gross sexual assault, unlawful
sexual contact, and furnishing liquor to a minor.{} The trial court also found
Almurshidy to have violated the terms of probation that had been imposed in
1996 on a conviction for criminal threatening with a dangerous weapon.
The basis for the probation violation was the finding by the trial court that
Almurshidy engaged in new criminal conduct, specifically these three
offenses. See 17-A M.R.S.A. § 1204(1) (Supp. 1998). The Superior Court
revoked his probation, and he was ordered to serve the time remaining on
his sentence.
[¶9] Almurshidy noticed an appeal of the probation violation, but he
did not perfect the appeal. "In a probation revocation proceeding in the
Superior Court, a person whose probation is revoked may not appeal as of
right." 17-A M.R.S.A. § 1207(2) (Supp. 1998). The manner and conditions
of the appeal are provided by rule. See id. Almurshidy did not follow the
procedures set forth in M.R. Crim. P. 37F, and no certificate of probable
cause was issued for the appeal. Therefore, the appeal of the probation
revocation must be dismissed. See M.R. Crim. P. 37F(j)(2).
I. SUFFICIENT EVIDENCE ON THE ISSUE OF COMPULSION
[¶10] The State charged that the victim submitted to Almurshidy as a
result of compulsion in both the unlawful sexual contact, 17-A M.R.S.A.
§ 255(1)(H), and gross sexual assault, id. § 253(1)(A).
"Compulsion" means the use of physical force, a threat to use
physical force or a combination thereof that makes a person
unable to physically repel the actor or produces in that person a
reasonable fear that death, serious bodily injury or kidnapping
might be imminently inflicted upon that person
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