State v. Elliott

• Decision Date: 21 January 2010
• Docket Number: Docket: Cum-09-61
• Citation: 2010 ME 3,987 A.2d 513
• Parties: STATE of Maine v. Mark ELLIOTT.
• Court: Maine Supreme Court

987 A.2d 513

2010 ME 3

STATE of Maine v. Mark ELLIOTT.

Docket: Cum-09-61

Supreme Judicial Court of Maine.

Argued: September 17, 2009.

Decided: January 21, 2010.

Darrick X. Banda, Esq. (orally), Daniel G. Lilley Law Offices, P.A., Portland, ME, for Mark Elliott.

Stephanie Anderson, District Attorney, Anne Berlind, Asst. Dist. Atty. (orally), Portland, ME, for the State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SAUFLEY, C.J.

[¶ 1] Mark Elliott appeals from judgments of conviction of stalking (Class D), 17-A M.R.S. § 210-A(1)(A)(1) (2007) (amended 2008),¹ and violating a protective order (Class D), 19-A M.R.S. § 4011(1) (2009),² entered in the Superior Court (Cumberland County, Warren, J.) after a jury trial. Elliott makes a number of arguments,³ but we address only the following: (1) whether evidence of his use of the roads was inadmissible because the stalking statute's definition of a "course of conduct" excludes the exercise of the constitutional right to travel; (2) whether the court erred in instructing the jury regarding unanimity on each event constituting a course of conduct; and (3) whether the court should have dismissed the count for violating a protective order or given an explanatory jury instruction because the State alleged "following," "monitoring," and "stalking," which are not elements of that crime, see 19-A M.R.S. §§ 4007(1), 4011(2) (2009).⁴ We affirm Elliott's convictions.

I. BACKGROUND

[¶ 2] Viewing the facts in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Bruzzese, 2009 ME 61, ¶ 2, 974 A.2d 311, 311-12. For two years, Mark Elliott and Jane Doe⁵ were involved in a romantic and sexual relationship. Doe broke up with Elliott in the fall of 2004, but they agreed at that time to remain friends. In June 2005, they had a disagreement, and in the fall of 2005, Doe told Elliott that she did not want any more contact with him.

[¶ 3] Doe worked in Andover, Massachusetts, three days per week, and she worked from home in South Portland on the other two days. Elliott was aware of Doe's work schedule and commuting habits from telephone conversations the two had while they were dating.

[¶ 4] Within two or three months after Doe told Elliott she did not want to have any more contact with him, Doe began to see him parked outside of a convenience store in South Portland near her home during her morning commute. At least ten times, she saw him sitting in his truck, parked parallel to the road, with the engine running. She also saw him in the parking lot of her workplace in Andover, Massachusetts. She had never seen him during her commute while they were dating, and he had never visited her at work. Based on these events, Doe sought and obtained a protection from abuse order in March 2006. Elliott was present at the hearing and was served a copy of the order in hand at the courthouse.

[¶ 5] About a month after she obtained the protective order, Doe saw Elliott at the convenience store again. She began to keep track of when she saw him, and she made reports to the police. Doe and her husband witnessed Elliott either parked or driving in his truck along Doe's work route eleven times between May 17, 2006, and March 13, 2008. The final incident on March 13 involved Elliott accelerating rapidly in his truck behind Doe on the Maine Turnpike, passing her vehicle on the left, and then slowing down. Doe slowed to maintain a distance between her car and Elliott's.

[¶ 6] Doe then sought to extend the protective order she had obtained. After notice and the opportunity for a hearing, and with both parties present in the courtroom and agreeing to the order, the court issued an extended protective order. The court entered a written judgment in which it ordered Elliott not to have any contact with Doe and added, "this includes following, stalking, monitoring plaintiff along her work route from So. Portland to Andover, MA."

[¶ 7] After obtaining the extended order, Doe again saw Elliott parked along her work route during her morning commute. She saw him three times between April 30, 2008, and June 12, 2008.

[¶ 8] On June 18, 2008, Elliott was charged with domestic violence stalking (Class D), 17-A M.R.S. § 210-C(1)(A) (2009), during the period from September 22, 2007, through June 12, 2008,⁶ and violation of a protection from abuse order (Class D), 19-A M.R.S. § 4011(1)(A). The complaint alleged that Elliott had violated the protection from abuse order "by following, stalking, and/or monitoring [Doe] along her work route from South Portland to Andover, MA."

[¶ 9] Elliott pleaded not guilty and moved to dismiss the second count on the ground that he could only be held in civil contempt for violating a provision of the protection order entered pursuant to 19-A M.R.S. § 4007(1)(M) (2009), which permits the court to enter "any other orders determined necessary or appropriate." See 19-AM.R.S. § 4011(2) ("When the only provision that is violated concerns relief authorized under section 4007, subsection 1, paragraphs H to N, the violation must be treated as contempt and punished in accordance with law."). The court (Brodrick, J.) denied Elliott's motion to dismiss based on its conclusion that the court that entered the extended protective order had acted within its authority in clarifying what the term "contact" meant in that order.⁷

[¶ 10] The court (Warren, J.) held a jury trial on both charges.⁸ After the State presented evidence and testimony from Doe and her husband, Elliott unsuccessfully moved for a judgment of acquittal. The parties then stipulated that, as of March 19, 2008, Elliott had actual notice of the extended protection from abuse order of March 14, 2008. Elliott did not offer any additional evidence.

[¶ 11] Regarding jury instructions for the stalking charge, Elliott proposed the inclusion of the entire definition of "course of conduct" contained in the stalking statute in effect at the time of the alleged conduct. See 17-A M.R.S. § 210-A(2)(A) (2007), amended by P.L.2007, ch. 685, § 1 (effective July 18, 2008). The definition included the following language: "`Course of conduct' does not include activity protected by the Constitution of Maine, the United States Constitution or by state or federal statute." Id. Elliott also proposed that the language regarding "following, stalking, and/or monitoring" be stricken from the instruction on the charge for violating a protective order because these are not criminal elements and are punishable only by contempt. See 19-A M.R.S. §§ 4007(1)(M), 4011(2).

[¶ 12] The court denied Elliott's requests and instructed the jury as follows on the stalking charge:

[T]o convict Mark Elliott of stalking, the State must prove the following beyond a reasonable doubt.

First, that Mark Elliott engaged in a course of conduct directed at [Doe] that consisted of repeatedly maintaining a visual or physical proximity to [Doe], or repeatedly conveying oral or written threats, threats implied by conduct, or a combination of threats and conduct directed at or toward [Doe]. And, repeatedly means on two or more occasions.

Second, the State has to prove that this course of conduct, in fact, caused [Doe] to suffer intimidation or serious inconvenience, annoyance or alarm. Third, ... that this course of conduct would also cause a reasonable person to suffer intimidation or serious inconvenience, annoyance or alarm. And, finally, that in engaging in this course of conduct, Mark Elliott acted either intentionally or knowingly.

On the count for violation of a protective order, the court instructed:

The second charge against Mark Elliott is that he violated a March 14, 2008 protection from abuse order on one or more occasions during the period beginning on April 30, 2008 and ending on June 12, 2008. And to convict Mark Elliott on this charge, the State must prove all of the following beyond a reasonable doubt.

First, that a protection from abuse order was issued. Second, that Mark Elliott had actual notice of that protection order. And, third, that after receiving actual notice of that order, Mark Elliott violated a provision of that order.

And the specific provision of the order that the State alleges was violated is a provision prohibiting Mark Elliott from following, stalking or monitoring [Doe] along her work route from South Portland to Andover, Massachusetts. In this context, monitor should be interpreted according to its ordinary meaning, to track or keep watch on.

The court also provided a general instruction on unanimity directing that, "to return a verdict of either guilty or not guilty, the verdict must be unanimous. Each member of the jury must agree to it."

[¶ 13] The jury returned guilty verdicts on both charges. After the verdicts, Elliott renewed his motion for a judgment of acquittal, moved for a new trial, and moved to arrest judgment. The court denied these motions.

[¶ 14] The court entered judgments of conviction of stalking, 17-A M.R.S. § 210-A(1)(A)(1), and violation of a protective order, 19-A M.R.S. § 4011(1). The court sentenced Elliott to eleven months incarceration, all but five months suspended, with a year of probation on the stalking conviction, and imposed a consecutive six-month sentence, all suspended, with a year of probation for violation of the protective order.⁹

[¶ 15] Elliott moved for reconsideration of his motion for judgment of acquittal and for the court to correct the sentence. The court denied his motion, and this appeal followed.

II. DISCUSSION

[¶ 16] For the reasons set forth below, we determine that the court committed no error in its rulings or jury instructions related to either charge and that the criminal complaint charging Elliott with violating a protective order was not defective.

A. The Stalking Charge

1. Constitutional Right to Travel

[¶ 17] Elliott first argues that any evidence of...