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State v. Shulikov
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 111
Docket:	Yor-97-140
Argued:	November 13, 1997
Decided:	May 14, 1998	

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and  SAUFLEY, JJ.

STATE OF MAINE

v.

NIKOLAY SHULIKOV

DANA, J.

	[¶1]  Nikolay Shulikov appeals from the judgments of conviction
entered in the Superior Court (York County, Bradford, J.) after a jury verdict
finding him guilty of ten counts of Class A gross sexual assault, one count of
Class B gross sexual assault, two counts of terrorizing, and one count of
sexual abuse of a minor, contending:  the court's failure to instruct the jury
on the presumption of innocence and burden of proof at the start of the trial
was obvious error; the evidence was insufficient as a matter of law; and the
prosecutor's use of improper impeachment methods resulted in obvious
error.  Shulikov also appeals from the sentences imposed on him, claiming
that the court:  abused its discretion in sentencing Shulikov to a twenty year
unsuspended sentence on the ten counts of Class A gross sexual assault;
improperly took the relationship between Shulikov and the victim into
account at both the first and second steps of the sentencing process;
improperly used the family's support of Shulikov as an aggravating factor;
abused its discretion by not taking Shulikov's health into account in
sentencing; and unlawfully imposed consecutive sentences on Counts 13 and
14.  We affirm the judgments of conviction and affirm in part and vacate in
part the sentences.

I.  THE FACTS

	[¶2]  In October 1995, Shulikov's daughter, then fourteen years old,
told her friend that she had been raped by her father.  She subsequently
reported a two-year history of sexual abuse by her father to her mother, her
friend's mother, a crisis worker from Sweetser Children's Services, and
investigators with the Saco Police Department.  As a result of his daughter's
allegations, Shulikov was charged in a fourteen count indictment with ten
counts of gross sexual assault (Class A) in violation of 17-A M.R.S.A.
§ 253(1)(B) (Supp. 1997);  two counts of terrorizing (Class D) in violation of
17-A M.R.S.A. § 210(1)(A) (1983); one count of gross sexual assault (Class B)
in violation of 17-A M.R.S.A. § 253(2)(H) (Supp. 1997); and one count of
sexual abuse of a minor (Class C) in violation of 17-A M.R.S.A. § 254 (1)(A),
(3)(A), and (3)(B) (Supp. 1997).  Shulikov pleaded not guilty to all charges.
	[¶3]  During the course of a three-day trial, the State called six
witnesses, including the victim and the victim's mother and brother.  The
victim testified that her father first had sexual intercourse with her
sometime between December 1992 and June 1993.  She reported that the
second incident took place "a couple of days" after she returned from a trip
to her godmother's house that she took shortly after the first incident.  She
related that her father had sexual intercourse with her approximately three
times a week for about a year and then with decreasing frequency for
another year, and that the last time she remembered her father having
intercourse with her was in October 1995.  Although she did not describe
any other specific incidents of sexual intercourse with her father, she
testified that she did not remember ever going longer than a week between
January 1993 and December 31, 1994, without her father having sexual
intercourse with her.
	[¶4]  Shulikov called three character witnesses in his defense:  his
wife's sister, brother, and father.  Shulikov's sister-in-law and brother-in-law
each testified that Nikolay had a reputation in his community as a truthful
man and a good father.  On cross-examination, the prosecutor, without
objection, asked them whether their opinion of Shulikov as a good father
would change if they heard from a truthful person that Shulikov had
provided alcohol to people under the age of twenty-one.  The witnesses
stated that this information would change their opinion.  Shulikov also
testified in his own defense and denied that he had sexually assaulted or
threatened his daughter.{1}  The jury found Shulikov guilty on all fourteen
counts.
	[¶5]  Before sentencing Shulikov, the court reviewed a presentence
investigation report and written submissions from members of the family of
the victim's mother.  At the sentencing hearing, the court heard arguments
from the prosecutor and the defense counsel, as well as statements from the
victim's mother and brother, and, in support of Shulikov, statements from
the pastor of Shulikov's church, several of the victim's mother's siblings,
and Shulikov himself.  The court performed the sentencing analysis
required pursuant to State v. Hewey, 622 A.2d 1151 (Me. 1993) and as
codified at 17-A M.R.S.A. § 1252-C (Supp. 1997).{2}  The court sentenced
Shulikov as follows:

·Counts 1 to 10--Gross Sexual Assault (Class A):  20 years of
imprisonment to be served concurrently.
·Counts 11 and 12--Terrorizing (Class D):  364 days of
confinement on each of the two counts to be served
consecutively to Counts 1 to 10 and consecutively to each other.
·Count 14--Gross Sexual Assault (Class B):  six years with all but
four years suspended to be served consecutively to Count 12 and
to be followed by four years of probation.
·Count 13--Sexual Abuse of a Minor (Class C):  three years all
suspended followed by four years of probation to be served
consecutively to the previous term of probation.

The sentence as a whole resulted in 26 years of imprisonment followed by
eight years of probation with five years of imprisonment suspended.  The
Sentence Review Panel granted Shulikov's application for leave to appeal his
sentence pursuant to M.R. Crim. P. 40 on September 19, 1997.

II.  THE DIRECT APPEAL

A.  JURY INSTRUCTIONS

	[¶6]  In challenging his convictions, Shulikov first argues that the trial
court committed obvious error because it failed to instruct the jury at the
start of the trial regarding the presumption of a defendant's innocence, the
burden of proof in a criminal prosecution, and the fact that the indictment
should not be given any evidentiary weight.  He contends that such
instructions at the beginning of a case are necessary to guarantee a fair trial,
and that the court's failure to provide the instructions immediately after the
reading of a long and prejudicial indictment constitutes obvious error. 
	[¶7]  Shulikov made no request for the instructions at the beginning of
the trial and did not bring the failure to provide such instructions to the
court's attention.  The failure to give the instructions is therefore reviewed
for obvious error.  State v. Dow, 616 A.2d 864, 865 (Me. 1992).  Obvious
error review seeks to "maintain the basic integrity of judicial proceedings
. . . in order to avoid depriving the defendant of his constitutional right to a
fundamentally fair trial and thus prevent a miscarriage of justice."  State v.
Bahre, 456 A.2d 860, 864 (Me. 1983).
	[¶8]  The trial court addressed the jury prior to the reading of the
indictment as follows:

	Again keep in mind that this is only a written accusation
and this will be followed by the opening statements of the
attorneys.  The statements of the attorneys are not evidence. 
The purpose of an opening statement is for the attorneys to tell
you what they believe the testimony and the evidence is going to
show, but the evidence that you will be considering in this case
will be the sworn testimony of the witnesses who testify and
such exhibits as may be admitted into evidence.

The court gave the following instruction before the jury began its
deliberations:

	I have mentioned this to you at the outset of this trial and I
mentioned [sic] it to you again as part of my final instructions,
but the law presumes Mr. Shulikov to be innocent and every
defendant, although accused, begins a trial with a clean slate,
with no evidence whatsoever against him and this presumption
of innocence alone is sufficient to acquit the defendant unless
you are satisfied beyond a reasonable doubt of the defendant's
guilt after a careful consideration of all of the evidence in the
case.

There is no record, however, of the court actually instructing the jury on the
presumption of innocence or burden of proof at the start of the trial.
	[¶9]  M.R. Crim. P. 30(b) allows a court flexibility in deciding the
timing of instructing the jury: "The court, at its election, may instruct the
jury before or after argument, or both."  Although the Maine Jury Instruction
Manual provides an example of an instruction that includes the law
governing the presumption of innocence and the burden of proof which may
be made immediately after the clerk finishes reading the charging
document, see Alexander, Maine Jury Instruction Manual §§ 4-1, 4-2 (3d
ed. 1996), such an instruction at that juncture has never been held to be
constitutionally required for a fair trial.  See, e.g., United States v. Payne,
944 F.2d 1458, 1464 (9th Cir. 1991) (analysis of whether ill-timing or
omission of a presumption of innocence instruction constitutes reversible
error is based on individual circumstances of particular case).
	[¶10]  On appeal we review jury instructions in their entirety to
ensure they are adequate.  State v. Cloutier, 1997 ME 96, ¶ 14, 695 A.2d
550, 554.  This method of review comports with the United States Supreme
Court's standard of ensuring a defendant's right to a fair trial as guaranteed
by the Due Process Clause of the Fourteenth Amendment.  See Kentucky v.
Whorton, 441 U.S. 786, 789, 99 S. Ct. 2088, 2090, 60 L. Ed. 2d 640 (1979)
(per curiam) (failure to give a requested instruction on the presumption of
innocence must be evaluated in light of the totality of the circumstances,
including all the instructions to the jury, to determine whether defendant
received a fair trial).  In State v. Liberty, 478 A.2d 1112 (Me. 1984), we held
that a defendant suffered no prejudice by an erroneous jury instruction
where the court corrected its mistake prior to jury deliberation.  "A
presiding justice has a right to correct an instruction to the jury before it
retires, and jurors are duty-bound to ignore any part of the charge
withdrawn."  Id. at 1117.  In the present case, the jury was fully and
properly instructed on the burden of proof and the presumption of
innocence prior to retiring, and the court's failure to so instruct at the
beginning of the trial, if error at all, did not "constitute[] highly prejudicial
error tending to produce manifest injustice."  Dow, 616 A.2d at 865
(quotations omitted).

B.  SUFFICIENCY OF THE EVIDENCE

	[¶11]  Shulikov next argues that the evidence presented at trial was
insufficient to convict him on eight counts of the fourteen count indictment. 
The indictment charged Shulikov with ten counts of gross sexual assault
covering the time period between January 1, 1993, and December 31, 1994
(counts 1 to 10), as well as sexual abuse of a minor and gross sexual assault
occurring between October 1 and October 31, 1995 (counts 13 and 14). 
The victim testified in detail about the first two instances of sexual assault by
her father, which occurred in early 1993, and about the last assault, which
occurred in October 1995.  Shulikov concedes that the evidence is sufficient
to sustain convictions on counts 13 and 14, but argues that the evidence
supports only two convictions from the first ten counts.
	[¶12]  Regarding the overall pattern of sexual abuse by her father, the
victim testified that he engaged in sexual intercourse with her over a two
year period about three times a week for the first year and less frequently
the next year.  She also could not remember ever going longer than a week
without her father having sexual intercourse with her during the period
from January 1993 to December 1994.
	[¶13]  When examining the sufficiency of the evidence, we review the
evidence 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. Beaudet, 1997 ME 133, ¶ 4, 696 A.2d 436,
438.  Viewing the evidence in this light, the jury reasonably could have
believed the victim's testimony that Shulikov engaged in sexual intercourse
with her at least once a week during the time periods charged in the
indictment.  This testimony is sufficient for the jury to find every element of
gross sexual assault beyond a reasonable doubt.  There is no requirement
that each count must be substantiated by details as to time, place, and
location, see Cloutier, 1997 ME 96, ¶ 10, 695 A.2d at 554 (testimony of
multiple acts of sexual abuse occurring over three years sufficient to support
convictions on multiple counts of gross sexual assault), and Shulikov's
argument that we should vacate the convictions in the face of such "weak
evidence" is without merit.