State v. Fahnley, Fra–14–180.

• Decision Date: 07 July 2015
• Docket Number: No. Fra–14–180.,Fra–14–180.
• Citation: 2015 ME 82,119 A.3d 727
• Parties: STATE of Maine v. John A. FAHNLEY.
• Court: Maine Supreme Court

119 A.3d 727

2015 ME 82

STATE of Maine

v.John A. FAHNLEY.

No. Fra–14–180.

Supreme Judicial Court of Maine.

Argued: Feb. 11, 2015.

Decided: July 7, 2015.

Timothy E. Zerillo, Esq. (orally), Zerillo Law, LLC, Portland, for appellant John A. Fahnley.

Joshua W. Robbins, Asst. Dist. Atty. (orally), Farmington, for appellee State of Maine.

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

Opinion

SAUFLEY, C.J.

[¶ 1] John A. Fahnley appeals from a judgment of conviction of sexual abuse of a minor (Class C), 17–A M.R.S. § 254(1)(A–2) (2014), entered by the court (Franklin County, Mills, J. ) after a jury trial. Fahnley argues that (A) the court improperly applied the “first complaint” rule and (B) the prosecutor committed misconduct in his closing arguments that deprived Fahnley of a fair trial. We affirm the judgment.

I. BACKGROUND

[¶ 2] Viewed in the light most favorable to the jury's verdict, the evidence in the record supports the following facts. State v. Diana, 2014 ME 45, ¶ 2, 89 A.3d 132. In August 2008, the victim, a fourteen-year-old boy, was a guest for several days in the home of John A. Fahnley, a longtime family friend who was then about fifty years old. One night, after the victim had become intoxicated and passed out, he awoke to find Fahnley removing his belt. Fahnley pulled the victim's pants down, undressed him, and put his mouth on the victim's penis, testicles, and rectum.¹

[¶ 3] Based on information about this and other conduct, in December 2012, Fahnley was charged by a complaint that, as amended, alleged two counts of sexual abuse of a minor (Class C), 17–A M.R.S. § 254(1)(A–2), and one count of sexual abuse of a minor (Class D), 17–A M.R.S. § 254(1)(A) (2014). He was later charged by indictment with gross sexual assault (Class A), 17–A M.R.S. § 253(1)(A) (2014), and two counts of sexual abuse of a minor (Class C), id. § 254(1)(A–2).

[¶ 4] The court held a three-day jury trial in February 2014. The State presented testimony from four witnesses: the victim's mother, the investigating detective from the Franklin County Sheriff's Office, a physician assistant who had treated Fahnley, and the victim himself. On direct examination by the State, the prosecutor asked the victim's mother the following question: “[W]hen was it that [the victim] revealed to you what had happened?” She answered, “It was a few days after his 18th birthday, September I would say 5th or 6th, 2011.” She was later asked, “[I]n September of 2011 I think you indicated is when ... you were told of the allegations by [the victim], does that sound right?” She responded, “Correct.” Asked, “how old was he?” she replied, “He was 18.” She testified that her son had spoken to her at age eighteen because “he said he didn't want [her] to have to deal with it with him as a minor.” The victim's mother did not testify about the content of any statements made by the victim and did not provide any details about what he told her.

[¶ 5] During the State's direct examination of the victim, the prosecutor asked, “[Y]ou waited until you were 18 years old to tell your mom; is that right?” and the victim answered, “Yes.” Asked for his rationale, he testified that he did not tell his mother until he was an adult because he “felt like it might not be as big a burden on her.” The State also elicited testimony that the victim had spoken with his ex-girlfriend about what had happened. Specifically, the State asked, “Who was the first person that you told about what had happened between you and John Fahnley?” The victim replied, “My ex-girlfriend....” The victim did not testify to what he said to either his mother or his girlfriend.

[¶ 6] Fahnley did not object to those questions by the prosecutor. Fahnley's counsel cross-examined both the victim and the investigating detective about inconsistent statements that the victim had made to his ex-girlfriend, the detective, and the Massachusetts police regarding whether there had been anal sex between him and Fahnley.

[¶ 7] Fahnley did not testify or offer any other evidence. The court provided thorough instructions to the jury and specifically instructed, “the opening statements and the closing arguments of the attorneys are not evidence”; “[d]uring your deliberations, if your memory of the evidence differs from what the attorneys say, it is your memory that controls”; and “[t]he fact that the defendant chose not to testify in this case also is not evidence. Under our law he has an absolute right not to testify. You are not permitted to speculate or try to guess why he did not testify.”

[¶ 8] As part of the State's closing argument, the prosecutor argued, “[The victim] is the only one who holds the evidence to this case, other than John Fahnley, they're the only two people who were in the house in Madrid, Maine, in August, 2008, when these events occurred.” He then argued that believing the victim is “all that it takes to convict John Fahnley of these charges.” Addressing the jury's responsibility to weigh the credibility of witnesses, the prosecutor argued, “[The victim's] testimony was very strong. And I suggest that when you recall how he testified here on the stand you will agree that his testimony was very strong.” He further argued, “What [the victim] learned is that John Fahnley is a sexual predator who uses alcohol, drugs and gifts to buy his way into the heart of a slender young boy.” He also told the jury that Fahnley had “violated the trust of a whole community, of all of us.”

[¶ 9] Fahnley raised no objection and proceeded to his closing argument. Fahnley emphasized inconsistencies in the victim's statements to others about what had happened. He specifically argued that the victim had “indicated to his girlfriend and Detective Darling [of Massachusetts] that the sex he had with John Fahnley was oral and anal both ways.”

[¶ 10] In rebuttal, the prosecutor responded to the reference to anal sex by arguing, “And the times where anal sex was involved, it happened later and they have not been charged. They're not at issue here today.”

[¶ 11] The prosecutor also argued, “Every crime against a child and every wrong against a weak or vulnerable person, every advantage taken against a person who is too old or fragile to defend themselves, it's a tear in the fabric of our society.” He argued, “The damage done to one of these victims is spread to all of us. It affects mothers and fathers and brothers and sisters, aunts and uncles and friends and neighbors.” He argued that “justice is not just for [the victim]. It is for all of us.” He closed by saying, “We provide many protections for a defendant and Mr. Fahnley has the advantage of those protection[s]. But we also need protection for our communities, and that is another one of your jobs that is performed here today, in meting out the justice that will be administered.”

[¶ 12] Fahnley objected to the last part of the State's rebuttal argument on the ground that “the effect of that will be to [evoke] some emotion from the jury to this victim.... [I]t's apt to prompt some inappropriate justice that they feel they have to do something for this victim.” The court indicated to counsel that it would give the jury a curative instruction that the jury should disregard any argument that it was the jury's job to protect society. The court gave the following instructions:

Ladies and gentlemen, with regard to the prosecutor's rebuttal argument, I'm going to ask you to disregard his suggestion that it is your job to somehow protect society. Your job in this case, as I have now told you several times, is to listen to the evidence, the testimony and use it to decide which testimony you find believable, to decide the facts, which means to decide what happened, apply the law that I have given to you and will continue to give to you and give us your verdict, either guilty or not guilty of each charge. That's your job. Your job is not to send a message. You're not—your job is not to protect society somehow. Your job is to do justice by doing what I have told you to do yesterday and today.

....

Further, you cannot allow your emotions or any feelings of prejudice or sympathy that you may have developed during the course of this trial to play any part in your verdict....

[¶ 13] After more than a day of deliberations, the jury returned a unanimous verdict finding Fahnley not guilty of gross sexual assault and guilty only of the Class C charge of sexual abuse of a minor from August 2008.² On April 3, 2014, the court sentenced Fahnley to five years of imprisonment, with all but three years suspended, and two years of probation, and ordered him to pay $25 to the victims' compensation fund. Fahnley appealed. See 15 M.R.S. § 2115 (2014) ; M.R.App. P. 2.

II. DISCUSSION

[¶ 14] Fahnley challenges the admission of testimony of the victim's mother indicating when the victim told her what had happened. He also argues that the State committed prosecutorial misconduct in its closing arguments. We address each issue separately.

A. First Complaint Rule and Hearsay

[¶ 15] Because Fahnley did not object to the testimony about the victim's report to his mother, we review his argument on appeal for obvious error. See State v. Lovejoy, 2014 ME 48, ¶ 19, 89 A.3d 1066 ; see also M.R. Crim. P. 52(b). For us to vacate a conviction based on the obvious error standard of review, “there must be (1) an error, (2) that is plain, and (3) that affects substantial rights.” Lovejoy, 2014 ME 48, ¶ 19, 89 A.3d 1066 (quotation marks omitted). “If these conditions are met, we will exercise our discretion to notice an unpreserved error only if we also conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings.” Id. (quotation marks omitted).

[¶ 16] Thus, we must first determine whether the admission of the mother's statement was error. We take this opportunity to resolve an area of confusion regarding the first complaint rule.

[¶ 17] Fahnley argues that the mother's...