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State v. Ali Almurshidy

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State v. Ali Almurshidy
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 97
Docket: 	Cum-98-433
Argued:	May 4, 1999
Decided:	June 25, 1999


Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Majority:RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Dissent:WATHEN, C.J., and CLIFFORD, J.

STATE OF MAINE

v.

ALI HUSSAIN ALMURSHIDY

CALKINS, J.

	[¶1] Ali Almurshidy appeals from a judgment of conviction of gross
sexual assault (Class A), 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 he
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