
    STATE of Maine v. Ralph Edward TERRELL.
    Supreme Judicial Court of Maine.
    June 14, 1979.
    John McElwee, Dist. Atty., Thomas L. Goodwin, Deputy Dist. Atty. (orally), Houl-ton, for plaintiff.
    Stewart, Griffiths & Quigley by David J. Edgar (orally), Houlton, for defendant.
    Before McKUSICK, C. J., POMEROY, WERNICK, ARCHIBALD, JJ., and DU-PRESNE, A. R. J.
   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.  