State v. Adams, 081319 MESC, Fra-18-444

Docket Nº:Fra-18-444
Opinion Judge:HJELM, J.
Attorney:John Scott Webb, Esq. (orally), and Katherine M. Campbell, Esq., Saco, for appellant Ross S. Adams James A. Andrews, Dep. Dist. Atty. (orally), Franklin County District Attorney Office, Farmington, for appellee State of Maine
Case Date:August 13, 2019
Court:Supreme Judicial Court of Maine

2019 ME 132




No. Fra-18-444

Supreme Court of Maine

August 13, 2019

Argued: June 12, 2019

John Scott Webb, Esq. (orally), and Katherine M. Campbell, Esq., Saco, for appellant Ross S. Adams

James A. Andrews, Dep. Dist. Atty. (orally), Franklin County District Attorney Office, Farmington, for appellee State of Maine



[¶1] In 2018, Ross S. Adams was convicted of unlawful sexual contact (Class A), 17-AM.R.S. § 255-A(1)(F-1) (2018), in the Unified Criminal Docket (Franklin County, Mullen, J.) after a jury trial. During the State's direct examination of the victim at the trial, the court admitted in evidence as past recollection recorded, see M.R. Evid. 803(5), a video recording of a forensic interview that had been conducted of the victim shortly after the crime occurred in 2014, when she was seven years old. On appeal, Adams asserts that the court's evidentiary ruling was erroneous because the State had not established the proper foundation required by that exception to the hearsay rule and because the admission of the video violated his constitutional right to confront the witness, see U.S. Const, amend VI.1 We affirm the judgment.


[¶2] We draw the following account of this case from the evidence as seen in the light most favorable to the State, see State v. Pelletier, 2019 ME 112, ¶ 2, - A.3d -, and from the procedural record.

[¶3] In the fall of 2013, the victim was six years old and lived in Massachusetts with her mother. The mother became romantically involved with Adams, and shortly after that relationship began, Adams moved into the mother and victim's home and, around the same time, started sexually abusing the victim.

[¶4] In July of 2014, Adams, the mother, and the victim moved to Farmington. From that time until October 9, 2014, Adams repeatedly sexually assaulted the victim, sometimes inside the house and other times outside, by touching her genitals and digitally penetrating her.

[¶5] On October 10, 2014, the victim travelled to Florida to visit her father. A few days later, she disclosed the abuse to her father. He contacted Florida's child services agency, which opened an investigation that led to a forensic interview conducted of the victim on October 20, 2014. The victim remained with her father in Florida and was still living with him when the trial was held in 2018.

[¶6] In November of 2014, Adams was charged with one count of unlawful sexual contact of a child under the age of twelve, with penetration, 17-A M.R.S. § 255-A(1)(F-1). After he was indicted for that charge several months later, he pleaded not guilty.

[¶7] The court conducted a two-day jury trial in June of 2018.2 On the first day of the trial, the State presented the testimony of the victim's mother and the victim, who then was eleven years old. During the State's examination of the victim, she testified that Adams had abused her a "lot" of times and that the incidents occurred both inside and outside the house where they were living. The victim recalled one specific incident that had occurred outside the house; she testified to conduct by Adams that would satisfy the elements of the charge, and she also described some of the surrounding circumstances. When asked about incidents of abuse that had occurred inside the house, the victim testified that there had been more than one such incident, that she thought that one had occurred in a bedroom, but that she did not have a specific memory of a particular incident. When the State inquired about the forensic interview, the victim testified that she remembered talking to the interviewer in Florida, that she had a clear memory of the abuse then, and that she had told the interviewer the truth.

[¶8] Based on that testimony, the State offered in evidence the video recording of the forensic interview.[3] The court viewed the recording out of the jury's presence, heard argument from the parties, and, over Adams's objection, determined that the State had developed a proper foundation for the portions of the recording relating to incidents of abuse inside the house to be admitted as past recollection recorded. See M.R. Evid. 803(5).

[¶9] Given that ruling and after carefully preserving his objection to it, Adams agreed that most of the remaining portions of the recording could be admitted in evidence. This approach allowed Adams to cross-examine the victim about potential inconsistencies between her testimony and her statements on the recording. The recording was played for the jury while the victim, by agreement of the parties, remained outside the courtroom. In the recording, the then-seven-year-old victim told the interviewer details about the abuse that had taken place inside the house-what Adams did to her, where it happened, where her mother was at the time, and how it made her feel. The victim told the interviewer that the last time Adams had abused her was the day before she left Maine to visit her father in Florida.

[¶10] After the video was played for the jury, the victim resumed her testimony and was cross-examined by Adams, during which he replayed parts of the recording to set up some of his questions. While testifying, the victim could not remember saying certain things to the forensic interviewer four years earlier, and she was unable to recall details of the incidents of abuse about which Adams was questioning her.

[¶11] The jury found Adams guilty of the single count of unlawful sexual contact. The court later denied Adams's motion for a new trial, see M.R.U. Crim. P. 33, or judgment of acquittal, see M.R.U. Crim. P. 29(b), and sentenced Adams to a seventeen-year prison term with all but ten years suspended and ten years' probation. This appeal followed. See 15 M.R.S. § 2115 (2018).


[¶12] Adams asserts that, for two reasons, the court erred by admitting evidence of the victim's out-of-court statements contained in the...

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