The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. );focket No.: 12-CR-;f>.6 I
~- r.e.r..J- !//.;;_'/ ~o 0
1
STATE OF MAINE,
V. DECISION AND ORDER
JEDIDIAH D. WATSON,
Defendant
This matter is before the Court on Defendant's Motion to Dismiss Count I
(assault) of the Indictment. For purposes of this motion, the parties stipulate to the
following facts:
1. Defendant did not make physical contact with the alleged victim of the assault.
2. The alleged victim, Defendant's minor child, was born on September 8, 2011,
and was discharged from the hospital on September 10, 2011. When the alleged victim
was discharged from the hospital, the alleged victim weighed 5 pounds.
3. On November 7, 2011, the alleged victim weighed 5 pounds and 1 ounce.
Consistent with the stipulations set forth above, at the hearing on the motion, the
State conceded that the assault charge is not based on any physical contact between the
Defendant and the alleged victim. Instead, the State alleges that the assault charge results
from Defendant's failure to provide the alleged victim with basic sustenance, which
failure caused the alleged victim to suffer physical harm (i.e., lack of appreciable weight
1
gain). The issue is thus whether as a matter of law, a person can be guilty of assault in
the absence of physical contact of any kind between the person and the alleged victim.
Pursuant to 17-A M.R.S. § 207 (2012), a person is guilty of assault if "[t]he
person intentionally, knowingly or recklessly causes bodily injury or offensive physical
contact to another person." Given the disjunctive nature of the statute, a person can
commit an assault (1) by causing bodily injury, or (2) by offensive physical contact to
another person. While it is apparent from the plain language of the statute that some type
of physical contact is a necessary prerequisite to a successful prosecution of an assault
charge based on "offensive physical contact to another person," the question is whether
physical contact is necessary to prove an assault based on bodily injury.
In support of his motion, Defendant relies upon the First Circuit's interpretation
of§ 207 in U.S. v. Nason, 269 F.3d 10 (1 sr Cir. 2001). In Nason, the First Circuit wrote,
The breadth of conduct covered by the bodily injury branch of the Maine
general-purpose assault statute unambiguously involves the use of
physical force. In pertinent part, the statute criminalizes the "use of
unlawful force against another causing bodily injury." [citation omitted] In
turn, all three types of bodily injury specified by Maine's' criminal code
(pain, illness, and impairment) contain the same adjectival modifier:
"physical" Me.Rev .Stat.Ann. tit. 17-A § 2(5). Common sense supplies the
missing piece of the puzzle: to cause physical injury, force necessarily
must be physical in nature. Accordingly, physical force is a formal
element of assault under the bodily injury branch of the Maine statute.
269 F.3d at 20. 1 The First Circuit's conclusion is consistent with the Law Court's
opinion in State v. Griffin, 459 A.2d 1086, 1091 (Me. 1983), where the Court defined
"intentionally, knowingly, or recklessly caus[ing] bodily injury ... to another," as "the
1
The First Circuit reiterated its conclusion in U.S. v. Duval, 496 F.3d 64, 84 (1st Cir. 2007), where
the Court stated, "[b]oth variants of assault regulated under Maine's general-purpose assault
statute necessarily involve the use of physical force."
2
knowingly intended use of unlawful force against another causing bodily injury as
statutorily defined."
The reasoning of the First Circuit is sound. As the First Circuit observed, the
statute criminalizes the use of physical force in certain instances (i.e., that which is
offensive and that which causes bodily injury). The Court, therefore, concludes that
where, as in this case, liability under the assault statute is based on a person causing
bodily injury, physical force is a necessary prerequisite for the imposition of liability.
Because the parties agree that the assault charge in this matter is not based on physical
contact between Defendant and the alleged victim, the Court grants Defendant's Motion
to Dismiss and dismisses Count I of the Indictment.
The Clerk shall incorporate this Decision and Order into the docket by reference.
Dated: ll(tctj;J
Superior Court
3
STATE OF MAINE SUPERIOR COURT
vs KENNEBEC, ss.
JEDIDIAH WATSON Docket No AUGSC-CR-2012-00766
3 A MIDDLE ST
LISBON FALLS ME 04252 DOCKET RECORD
DOB: 08/07/1979
Attorney: JEFFREY TOWNE State's Attorney: EVERT FOWLE
179 MAIN STREET STE 202
WATERVILLE ME 04901
APPOINTED 07/02/2013
Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C)
Filing Date: 09/19/2012
Charge(s)
1 ASSAULT 0910812011 AUGUSTA
Seq 8383 17-A 207 (1) (B) Class C
TRACY I AUG
2 ENDANGERING THE WELFARE OF A CHILD 0910812011 AUGUSTA
Seq 4477 17-A 554 (1) (B-1) Class D
TRACY I AUG
Docket Events:
09/20/2012 FILING DOCUMENT - INDICTMENT FILED ON 09/19/2012
TRANSFER - BAIL AND PLEADING GRANTED ON 09/19/2012
TRANSFER - BAIL AND PLEADING REQUESTED ON 09/19/2012
09/20/2012 Charge(s): 1,2
WARRANT- $10,000.00 ON COMP/INDICTMENT ORDERED ON 09/19/2012
M MICHAELA MURPHY , JUSTICE
SURETY, OR $1,000 CASH, NO CONTACT WITH DESTINY WATSON, SANDRA YOUNG
09/20/2012 Charge(s): 1,2
WARRANT- $10,000.00 ON COMP/INDICTMENT ISSUED ON 09/20/2012
SURETY, OR $1,000 CASH, NO CONTACT WITH DESTINY WATSON, SANDRA YOUNG
09/20/2012 Charge(s): 1,2
WARRANT - ON COMP/INDICTMENT EXECUTED BY AGENCY ON 09/20/2012 at 07:52 p.m.
09/28/2012 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 09/27/2012
10/01/2012 BAIL BOND- $1,000.00 CASH BAIL BOND FILED ON 10/01/2012
Bail Receipt Type: CR
Bail Amt: $1,000
Receipt Type: CK
Date Bailed: 10/01/2012 Prvdr Name: JOSEPH REEVE
Rtrn Name: JOSEPH REEVE
BAIL DISBURSEMENT ON 04/04/2013
CR 200 Page 1 of 7 Printed on: 11/19/2013
JEDIDIAH WATSON
AUGSC-CR-2012-00766
DOCKET RECORD
Check No. 9743 Check Amount: 1,000.00
Paid To: DISTRICT ATTORNEY'S OFFICE
FORFEITED TO DA EXTRADITION ACCT
10/01/2012 Charge(s): 1,2
HEARING - ARRAIGNMENT HELD ON 09/26/2012
CHARLES DOW I JUDGE
DA: TRACY DEVOLL
Defendant Present in Court
READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/INFORMATION GIVEN TO
DEFENDANT. 21 DAYS TO FILE MOTIONS
10/01/2012 Charge (s) : 1, 2
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 09/26/2012
10/01/2012 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 12/04/2012 at 08:45 a.m.
10/01/2012 BAIL BOND- $1,000.00 CASH BAIL BOND SET BY COURT ON 09/26/2012
CHARLES DOW IJUDGE
OR 10,000 SURETY, NO CONTACT WITH DESTINY WATSON OR SANDRA YOUNG 4/16/1981, REVIEWABLE BY
ANY JUSTICE ON ENTRY OF APPEARANCE OF COUNSEL, NO CONTACT WITH CHILDREN UNDER 5 YEARS OLD
10/04/2012 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 09/28/2012
NANCY MILLS I JUSTICE
COPY TO PARTIES/COUNSEL
10/04/2012 Party(s): JEDIDIAH WATSON
ATTORNEY - APPOINTED ORDERED ON 09/28/2012
Attorney: STEPHEN BOURGET
10/11/2012 MOTION - MOTION FOR EXTENSION OF TIME FILED BY DEFENDANT ON 10/10/2012
10/16/2012 MOTION - MOTION FOR EXTENSION OF TIME GRANTED ON 10/11/2012
JOHN NIVISON JUSTICE
I
Defendant Present in Court
COPY TO PARTIES/COUNSEL
12/04/2012 Charge (s) : 1, 2
TRIAL - DOCKET CALL HELD ON 12/04/2012
DONALD H MARDEN I JUSTICE
Defendant Present in Court
12/04/2012 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 02/05/2013 at 09:15 a.m.
01/10/2013 Charge (s) : 1, 2
TRIAL - DOCKET CALL NOTICE SENT ON 01/09/2013
02/05/2013 Charge (s) : 1, 2
TRIAL - DOCKET CALL FTA ON 02/05/2013
02/05/2013 BAIL BOND - CASH BAIL BOND DEFAULTED ON 02/05/2013
Date Bailed: 10/01/2012
CR 200 Page 2 of 7 Printed on: 11/19/2013
JEDIDIAH WATSON
AUGSC-CR-2012-00766
DOCKET RECORD
BAIL DISBURSEMENT ON 04/04/2013
Check No. 9743 Check Amount: 1,000.00
Paid To: DISTRICT ATTORNEY'S OFFICE
FORFEITED TO DA EXTRADITION ACCT
02/05/2013 BAIL BOND - CASH BAIL BOND NOTICE SENT ON 02/05/2013
Date Bailed: 10/01/2012
BAIL DISBURSEMENT ON 04/04/2013
Check No. 9743 Check Amount: 1,000.00
Paid To: DISTRICT ATTORNEY'S OFFICE
FORFEITED TO DA EXTRADITION ACCT
02/07/2013 Charge(s): 1,2
WARRANT - $2,500.00 FOR FAILURE TO APPEAR ORDERED ON 02/05/2013
CARL 0 BRADFORD , JUSTICE
CASH BAIL, DEFENDANT FAILED TO APPEAR FOR DOCKET CALL
02/07/2013 Charge(s): 1,2
WARRANT- $2,500.00 FOR FAILURE TO APPEAR ISSUED ON 02/05/2013
CASH BAIL, DEFENDANT FAILED TO APPEAR FOR DOCKET CALL
02/07/2013 Charge(s): 1,2
WARRANT - FOR FAILURE TO APPEAR RECALLED ON 02/07/2013
02/07/2013 Charge(s): 1,2
WARRANT - FOR FAILURE TO APPEAR CANCEL ACKNOWLEDGED ON 02/07/2013 at 01:00 p.m.
02/07/2013 Charge(s): 1,2
WARRANT- $2,500.00 FOR FAILURE TO APPEAR ORDERED ON 02/05/2013
CARL 0 BRADFORD , JUSTICE
CASH BAIL, NO CONTACT WITH DESTINY WATSON, DOB 9/B/11, DEFENDANT FAILED TO APPEAR FOR
DOCKET CALL
02/07/2013 Charge(s): 1,2
WARRANT- $2,500.00 FOR FAILURE TO APPEAR ISSUED ON 02/07/2013
CASH BAIL, NO CONTACT WITH DESTINY WATSON, DOB 9/8/11, DEFENDANT FAILED TO APPEAR FOR
DOCKET CALL
03/01/2013 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 03/01/2013
Attorney: STEPHEN BOURGET
03/07/2013 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 03/07/2013
M MICHAELA MURPHY , JUSTICE
COPY TO PARTIES/COUNSEL
03/07/2013 Party(s): JEDIDIAH WATSON
ATTORNEY - WITHDRAWN ORDERED ON 03/01/2013
Attorney: STEPHEN BOURGET
04/04/2013 BAIL BOND - CASH BAIL BOND DISBURSEMENT ON 04/04/2013
Date Bailed: 10/01/2012
BAIL DISBURSEMENT ON 04/04/2013
Check No. 9743 Check Amount: 1,000.00
Paid To: DISTRICT ATTORNEY'S OFFICE
CR 200 Page 3 of 7 Printed on: 11/19/2013
JEDIDIAH WATSON
AUGSC-CR-2012-00766
DOCKET RECORD
FORFEITED TO DA EXTRADITION ACCT
06/26/2013 Charge(s): 1,2
WARRANT - FOR FAILURE TO APPEAR EXECUTED BY AGENCY ON 06/26/2013 at 01:42 p.m.
07/01/2013 HEARING - BAIL HEARING HELD ON 06/26/2013
PATRICK ENDE IJUDGE
Defendant Present in Court
BAIL HEARING HELD
07/01/2013 BAIL BOND - CASH BAIL BOND BAIL RELEASED ON 06/26/2013
Date Bailed: 10/01/2012
BAIL DISBURSEMENT ON 04/04/2013
Check No. 9743 Check Amount: 1,000.00
Paid To: DISTRICT ATTORNEY'S OFFICE
FORFEITED TO DA EXTRADITION ACCT
07/01/2013 BAIL BOND- $1,500.00 CASH BAIL BOND SET BY COURT ON 06/26/2013
PATRICK ENDE IJUDGE
CASH BAIIL OR 10,000 SURETY, NO CONTACT WITH DESTINY WATSON 9/8/11 OR SANDRA YOUNG
4/16/1981, REVIEWABLE UPON APPOINTMENT OF COUNSEL
07/01/2013 BAIL BOND - CASH BAIL BOND COMMITMENT ISSUED ON 06/26/2013
07/01/2013 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 08/06/2013 at 01:00 p.m.
07/01/2013 BAIL BOND - CASH BAIL BOND RELEASE ACKNOWLEDGED ON 07/01/2013
Date Bailed: 10/01/2012
BAIL DISBURSEMENT ON 04/04/2013
Check No. 9743 Check Amount: 1,000.00
Paid To: DISTRICT ATTORNEY'S OFFICE
FORFEITED TO DA EXTRADITION ACCT
07/01/2013 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 07/01/2013
07/05/2013 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 07/02/2013
COPY TO PARTIES/COUNSEL
07/05/2013 Party(s): JEDIDIAH WATSON
ATTORNEY - APPOINTED ORDERED ON 07/02/2013
Attorney: JEFFREY TOWNE
07/08/2013 BAIL BOND - $1,500.00 CASH BAIL BOND FILED ON 07/08/2013
Bail Receipt Type: CR
Bail Amt: $1,500
Receipt Type: CK
Date Bailed: 07/05/2013 Prvdr Name: RAY ARFT
CR 200 Page 4 of 7 Printed on: 11/19/2013
JEDIDIAH WATSON
AUGSC-CR-2012-00766
DOCKET RECORD
Rtrn Name: RAY ARFT
*** HOLD BAIL FOR DHS
07/15/2013 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 07/15/2013
Attorney: JEFFREY TOWNE
07/17/2013 MOTION- MOTION TO CONTINUE GRANTED ON 07/16/2013
M MICHAELA MURPHY , JUSTICE
COPY TO PARTIES/COUNSEL
07/17/2013 Charge(s): 1,2
TRIAL - DOCKET CALL CONTINUED ON 07/16/2013
M MICHAELA MURPHY , JUSTICE
07/17/2013 TRIAL - DOCKET CALL SCHEDULED FOR 09/04/2013 at 02:30p.m.
08/15/2013 MOTION - MOTION TO AMEND COMPLAINT FILED BY STATE ON 08/15/2013
08/26/2013 MOTION - MOTION BILL OF PARTICULARS FILED BY DEFENDANT ON 08/22/2013
Attorney: JEFFREY TOWNE
08/27/2013 HEARING - MOTION BILL OF PARTICULARS SCHEDULED FOR 09/04/2013 at 02:30 p.m.
08/27/2013 HEARING - MOTION BILL OF PARTICULARS NOTICE SENT ON 08/27/2013
08/28/2013 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 08/27/2013
08/28/2013 MOTION - MOTION TO PRODUCE DHHS RECORD FILED BY DEFENDANT ON 08/27/2013
09/05/2013 MOTION - MOTION TO PRODUCE DHHS RECORD GRANTED ON 09/03/2013
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
09/05/2013 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 09/05/2013
09/05/2013 MOTION - MOTION TO CONTINUE GRANTED ON 09/04/2013
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
09/05/2013 HEARING - MOTION BILL OF PARTICULARS CONTINUED ON 09/04/2013
09/05/2013 TRIAL - DOCKET CALL CONTINUED ON 09/04/2013
09/05/2013 Charge (s) : 1, 2
TRIAL - DOCKET CALL SCHEDULED FOR 10/08/2013 at 02:15p.m.
09/05/2013 HEARING- MOTION TO DISMISS SCHEDULED FOR 10/09/2013 at 08:30a.m.
NOTICE TO PARTIES/COUNSEL
09/05/2013 HEARING - MOTION BILL OF PARTICULARS SCHEDULED FOR 10/09/2013 at 08:30 a.m.
09/30/2013 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 09/30/2013
Attorney: JEFFREY TOWNE
10/02/2013 OTHER FILING - DHHS RECORD FILED ON 10/02/2013
ON SHELF IN BROWN BOX BEHIND PENNY
10/10/2013 MOTION - MOTION TO CONTINUE GRANTED ON 10/08/2013
CR 200 Page 5 of 7 Printed on: 11/19/2013
JEDIDIAH WATSON
AUGSC-CR-2012-00766
DOCKET RECORD
M MICHAELA MURPHY I JUSTICE
COPY TO PARTIES/COUNSEL
10/10/2013 Charge ( s) : 1, 2
TRIAL - DOCKET CALL CONTINUED ON 10/08/2013
10/10/2013 HEARING - MOTION BILL OF PARTICULARS HELD ON 10/09/2013
JOHN NIVISON I JUSTICE
Attorney: JEFFREY TOWNE
DA: FERNAND LAROCHELLE
Defendant Present in Court
PARTIES TO SUBMIT LEGAL AUTHORITY IN CONNECTION WITH MOTION TO DISMISS, PLEASE RETURN TO
ME ON 10/16 FOR MOTION TO DISMISS
10/10/2013 MOTION - MOTION BILL OF PARTICULARS UNDER ADVISEMENT ON 10/09/2013
JOHN NIVISON JUSTICE
I
PARTIES TO SUBMIT AUTHORITY
10/10/2013 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 12/03/2013 at 02:15p.m.
10/18/2013 OTHER FILING - OTHER DOCUMENT FILED ON 10/18/2013
DA: FERNAND LAROCHELLE
STATE'S ARGUMENT
10/21/2013 OTHER FILING - OTHER DOCUMENT FILED ON 10/21/2013
Attorney: JEFFREY TOWNE
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS INDICTMENT COUNT 1
11/05/2013 HEARING - MOTION TO DISMISS SCHEDULED FOR 12/04/2013 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
11/19/2013 ORDER - COURT ORDER FILED ON 11/19/2013
JOHN NIVISON JUSTICE
I
THE COURT CONCLUDES THAT WHERE, AS IN THIS CASE, LIABILITY UNDER THE ASSAULT STATUTE IS
BASED ON A PERSON CAUSING BODILY INJURY, PHYSICAL FORCE IS A NECESSARY PREREQUISITE FOR
THE IMPOSITION OF LIABILITY. BECAUSE THE PARTIES AGREE THAT THE ASSAULT CHARGE IN THIS
MATTER IS NOT BASED ON PHYSICAL CONTACT BETWEEN DEFENDANT AND THE ALLEGED VICTIM, THE
COURT GRANTS DEFENDANT'S MOTION TO DISMISS AND DISMISSES COUNT 1 OF THE INDICTMENT.
11/19/2013 ORDER - COURT ORDER ENTERED ON 11/19/2013
11/19/2013 HEARING - MOTION TO DISMISS HELD ON 10/09/2013
JOHN NIVISON JUSTICE
I
Attorney: JEFFREY TOWNE
DA: FERNAND LAROCHELLE
Defendant Present in Court
11/19/2013 HEARING - MOTION TO DISMISS NOT HELD ON 11/19/2013
11/19/2013 MOTION - MOTION TO DISMISS GRANTED ON 11/19/2013
JOHN NIVISON JUSTICE
I
COPY TO PARTIES/COUNSEL COUNT 1
DISMISSED BY ORDER OF JUSTICE NIVISON
11/19/2013 Charge(s): 1
FINDING - DISMISSED BY COURT ENTERED BY COURT ON 11/19/2013
JOHN NIVISON I JUSTICE
CR 200 Page 6 of 7 Printed on: 11/19/2013
JEDIDIAH WATSON
AUGSC-CR-2012-00766
DOCKET RECORD
A TRUE COPY
ATTEST:
Clerk
CR 200 Page 7 of 7 Printed on: 11/19/2013