State v. Foster
| Decision Date | 18 October 2016 |
| Docket Number | Docket: Cum-15-635 |
| Citation | 149 A.3d 542,2016 ME 154 |
| Parties | State of Maine v. Jason M. Foster |
| Court | Maine Supreme Court |
Jamesa J. Drake, Esq., (orally), Drake Law, LLC, Auburn, for appellant Jason M. Foster.
Stephanie Anderson, District Attorney, and Jennifer F. Ackerman, Dep. Dist. Atty., (orally), Prosecutorial District Two, Portland, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶1] Jason M. Foster was charged by indictment with eighteen criminal counts based on allegations that he had pretended to be a police officer in order to compel or induce four women who were engaged in prostitution to have sex with him as he demanded. Foster appeals from a judgment of conviction entered by the court (Cumberland County, Warren, J. ) after a jury found him guilty of two counts of gross sexual assault (Class B), 17–A M.R.S. § 253(2)(B) (2015) ; four counts of impersonating a public servant (Class E), 17–A M.R.S. § 457(1), (3) (2015) ; and two counts of engaging a prostitute (Class E), 17–A M.R.S. § 853–B(1)(A) (2015), based on his conduct toward three of the four women identified by initials in the indictment. He argues that he was deprived of due process because the indictment and jury verdict form did not adequately distinguish among separate allegations involving each victim. We affirm the judgment.
[¶2] Foster was charged with eighteen crimes involving four victims through an indictment signed on November 7, 2014. For each count, he was charged with a crime alleged to have occurred “between October 9, 2013 and October 9, 2014.” Although the indictment did not specify the victims for the counts of impersonating a public servant, the organization of the indictment and the specificity in the jury verdict form make clear which counts are associated with each alleged victim. The indictment charged four counts of gross sexual assault (Counts 1 through 4) and four counts of impersonating a public servant (Counts 5 through 8) with respect to one woman; two counts of engaging a prostitute (Counts 11 and 12) and two counts of impersonating a public servant (Counts 13 and 14) with respect to a second woman; two counts of gross sexual assault (Counts 15 and 16) and two counts of impersonating a public servant (Counts 17 to 18) with respect to a third woman; and single counts of theft by extortion (Class C), 17–A M.R.S. § 355(1), (3) (2015), (Count 9) and impersonating a public servant (Count 10) with respect to a fourth woman.
[¶3] In April 2015, Foster moved for a bill of particulars regarding the counts charging him with gross sexual assault and impersonating a public servant. He argued that duplicative language in the indictments and the broad date range failed to provide him sufficient notice of the basis for each charge against him, thereby depriving him of the opportunity to prepare a defense, and failed to protect him from double jeopardy. A month later, after further discovery, Foster withdrew his motion for a bill of particulars without prejudice.
He did not file another motion for a bill of particulars.
[¶4] The court held a jury trial on August 18, 19, and 20, 2015. Foster did not request jury instructions explaining the requirement of unanimity as to each specific charged crime. Nor did Foster seek further clarification of the nature of each alleged crime in the jury verdict form. The verdict form identified, for each charged crime, the name of the alleged victim. No further specificity was provided in the form, except to require the jury to find whether, if Foster engaged a prostitute, he did so after the date at the start of the date range for the charged crimes.
[¶5] The jury found Foster guilty of eight of the eighteen charges, which involved three of the four alleged victims. The jury found him guilty of the third listed count of gross sexual assault of one victim (Count 3) and the third listed count of impersonating a public servant with respect to that victim (Count 7). It also found that he was guilty of both counts of engaging another victim as a prostitute (Counts 11 and 12) and both counts of impersonating a public servant with respect to that victim (Counts 13 and 14). Finally, the jury found Foster guilty of the second listed count of gross sexual assault (Count 16) and the second listed count of impersonating a public servant (Count 18) with respect to the third victim.1
[¶6] The court sentenced Foster to eight years in prison for the conviction of gross sexual assault alleged in Count 3, to be served consecutively to concurrent four-month sentences for his convictions of Counts 11, 12, 13, 14, and 18. The court imposed a six-month sentence for impersonating a public servant with respect to the victim of Count 3 (Count 7), to be served concurrently with the sentence for Count 3; a seven-year sentence, all suspended, for the other gross sexual assault conviction (Count 16), to run consecutively to the sentence for Count 3; and a three-year term of probation. The court also ordered Foster to pay a fine of $1,150 and to pay up to $500 to reimburse the victims' compensation fund for restitution benefitting one of the victims.
[¶7] Foster timely appealed from the judgment of conviction and applied for leave to appeal from his sentence. See 15 M.R.S. §§ 2115, 2151 (2015) ; M.R. App. P. 2, 20. The Sentence Review Panel denied his application for sentence review, see 15 M.R.S. § 2152 (2015) ; M.R. App. P. 20(f), and we now consider his appeal from the judgment of conviction.
[¶8] If a defendant files and pursues a motion for a bill of particulars to challenge the sufficiency of an indictment, we review a denial of the motion for an abuse of discretion. See State v. Flynn , 2015 ME 149, ¶ 27, 127 A.3d 1239. We do not, however, review the issue at all when a defendant has knowingly and voluntarily waived the issue of an indictment's sufficiency by declining to request a bill of particulars or otherwise challenge the indictment in the trial court. See M.R.U. Crim. P. 12(b)(2) ; State v. Clarke , 2015 ME 70, ¶ 5 n.2, 117 A.3d 1045 (); State...
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...evidentiary hearing that would determine which of the witnesses' varying stories—delivered under oath—might be untruthful. See State v. Foster , 2016 ME 154, ¶ 10, 149 A.3d 542 ; cf. United States v. Gates , 698 F.Supp.2d 212, 218–19 (D. Me. 2010) (denying a motion to withdraw a guilty plea......
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