MEMORANDUM OF DECISION.
Defendant Ralph Edward Terrell was convicted of gross sexual misconduct in violation of 17-A M.R.S.A. § 253 (Supp. 1978). On appeal, defendant argues and the State concedes that the State failed to prove beyond a reasonable doubt that defendant committed the requisite "sexual act" as defined by 17-A M.R.S.A. § 251(1)(C). We agree. The defendant's conviction based on the indictment for gross sexual misconduct cannot stand.
Although the evidence may have been sufficient to prove a "sexual contact" as defined by 17-A M.R.S.A. § 251(1)(D), thus establishing the offense of unlawful sexual contact in violation of 17-A M.R.S.A. § 255, the latter crime is not a lesser included offense of gross sexual misconduct. 17-A M.R.S.A. § 251 defines "sexual contact" and "sexual act" to be mutually exclusive. We therefore must direct the entry of judgment of acquittal on the present indictment.
The entry is:
Appeal sustained.
Judgment of conviction reversed.
Remanded for entry of judgment of acquittal.
DUFRESNE, A.R.J., sat by assignment.
DELAHANTY, GODFREY and NICHOLS, JJ., did not sit.