Cases | State v. Branch-Wear, 695 A.2d 1169 (Me. 1997) | 2018
The defendant’s husband was prosecuted for sexual abuse of the defendant’s daughter. The defendant moved her daughter to another state without informing the victim/witness assistant, and did not bring her daughter to trial. As a result, the case against the defendant’s husband was dismissed. The defendant was convicted of tampering with a victim. On appeal, the defendant claimed that: (1) the court should have instructed the jury only on a “voluntary omission” theory of conduct; and (2) evidence was insufficient to establish that the defendant tampered with a victim. The court held that: (1) Me. Rev. Stat. Ann. tit. 17-A, § 454 did not distinguish between acts of commission or voluntary omission. The defendant’s conduct included acts of evasion and deceit that caused her daughter to withhold testimony. In addition, the State presented evidence of a crime of commission, the trial court correctly ruled prior to trial that the State was proceeding pursuant to the portion of § 454 that did not require the victim or witness to be subject to a subpoena, and the State did not rely on a parental duty to produce the defendant’s daughter for trial; and (2) the statute did not require proof of the daughter’s intent to testify or that she had been subpoenaed. Ample evidence supported the jury’s determination that the State proved beyond a reasonable doubt that the defendant removed her daughter to another state and took affirmative steps to prevent her from testifying after promising to produce her for trial.