State v. Gantnier

• Decision Date: 01 November 2012
• Docket Number: Docket No. Aro–10–560.
• Citation: 2012 ME 123,55 A.3d 404
• Parties: STATE of Maine v. James P. GANTNIER.
• Court: Maine Supreme Court

55 A.3d 404

2012 ME 123

STATE of Maine

v.James P. GANTNIER.

Docket No. Aro–10–560.

Supreme Judicial Court of Maine.

Argued: June 14, 2011.

Reargued: Sept. 13, 2012.

Decided: Nov. 1, 2012.

Sarah LeClaire, Esq. (orally), Presque Isle, for appellant James P. Gantnier.

Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty., 8th Prosecutorial District, Houlton, for appellee State of Maine.

William J. Schneider, Attorney General, Laura Yustak Smith (orally), Asst. Atty. Gen., and Donald W. Macomber, Asst. Atty. Gen., Department of the Attorney General, Augusta, for amicus curiae Department of the Attorney General.

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

JABAR, J.

[¶ 1] A jury convicted James P. Gantnier of unlawful sexual contact (Class D), 17–A M.R.S. § 255–A(1)(A) (2011), and of violating a condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2011). On appeal, Gantnier challenges both convictions. Because we agree with Gantnier that the Superior Court (Aroostook County, Hunter, J.) erred in denying Gantnier's request to instruct the jury on assault (Class D), 17–A M.R.S. § 207(1)(A) (2011), as a lesser included offense of unlawful sexual contact, we vacate Gantnier's conviction for unlawful sexual contact. We do not disturb his conviction for violating a condition of release.

I. BACKGROUND

[¶ 2] Viewed in the light most favorable to the jury's verdict, the evidence established that in March 2008, James Gantnier and the victim were both living with the victim's maternal grandmother. Gantnier is the ex-husband of the victim's mother, with whom he has two children, a son and a daughter.

[¶ 3] On the morning of March 18, 2008, Gantnier and the victim were alone in the grandmother's house. The victim, who was fourteen at the time, had been asleep on the couch, but awoke to Gantnier touching what she identified as her “private areas” or her “vagina.” He was touching her beneath a blanket but over her pajamas. Upon realizing what was happening, the victim immediately jumped up from the couch and called her aunt and her mother. Gantnier apologized to the victim and asked her not to tell anyone “because it was going to ruin his life.”

[¶ 4] Later that afternoon, during an interview with a Maine State Trooper, Gantnier told the Trooper that “it was a mistake” and that he “[s]houldn't have done it.” The State charged Gantnier with unlawful sexual contact, 17–A M.R.S. § 255–A(1)(A), alleging that he “did intentionally subject Child A, who had not expressly or impliedly acquiesced, to sexual contact.” ¹ The court issued a bail bond prohibiting Gantnier from having direct or indirect contact with the victim.

[¶ 5] Sometime after March 18, the victim moved in with her mother. The victim's half-sister, Gantnier's daughter, also lived in the home. On June 13, 2008, Gantnier, accompanied by his son and the victim's grandmother, arrived at the victim's mother's house to pick up his daughter. At the request of the victim's grandmother, Gantnier took several group pictures of the three children standing outside the home. The bail bond prohibiting Gantnier from having contact with the victim was still in effect on June 13, and for this conduct the State charged Gantnier with violating a condition of release.

[¶ 6] In June 2010, the court held a jury trial on the charges of unlawful sexual contact and violating a condition of release. Gantnier testified to his version of what occurred on March 18. He explained that while trying to wake the victim, he reached down to shake her. Gantnier testified that the victim was curled up in a ball with a blanket completely covering her; consequently he could not be sure where he touched her, but he said he intended to touch her shoulder or hip. The victim woke up as soon as he touched her, and he apologized to her when she jumped up in a panic. Gantnier testified that he never told the victim not to tell anyone because it would ruin his life. He stated that during his conversation with the Maine State Trooper he said that he told the trooper that if anything had happened, it was an accident. He further clarified that when he told the trooper that he should not have done it, he meant that he wished he had not woken the victim up.

[¶ 7] At the close of evidence, Gantnier requested that the court instruct the jury on unlawful sexual touching, 17–A M.R.S. § 260, and assault, 17–A M.R.S. § 207, as lesser-included offenses of unlawful sexual contact. The court denied Gantnier's request, reasoning that because all three crimes were Class D crimes, assault and unlawful sexual touching did not carry a lesser penalty than unlawful sexual contact.

[¶ 8] The jury convicted Gantnier of unlawful sexual contact and violating a condition of release. The court sentenced him to nine months in jail, all but thirty days suspended, and one year of probation for the unlawful sexual contact, and thirty days for violating a condition of release, to be served concurrently. The court also notified him of the ten-year sex offender registration requirement pursuant to the Sex Offender Registration and Notification Act of 1999 (SORNA), 34–A M.R.S. §§ 11201–11256 (2011). ²

II. DISCUSSION

A. Lesser–Included–Offense Instructions

[¶ 9] In order to assess Gantnier's contention that he was entitled to lesser-included-offense instructions, we must resolve three distinct issues: first, whether the formal charge of unlawful sexual contact contains the lesser-included offenses, such that the included offenses, as legally defined, are necessarily committed when the offense charged, as legally defined, is committed, 17–A M.R.S. § 13–A(2)(A) (2011); second, whether the included offenses carry a lesser penalty than the offense charged, id. § 13–A(2); third, whether the lesser-included-offense instructions were required under the facts of this case. Id. § 13–A(1). In undertaking this review, we review the court's legal conclusions de novo. See State v. Labbe, 2009 ME 94, ¶ 2, 979 A.2d 693.

1. Whether the offenses are lesser-included offenses

[¶ 10] The first issue is whether the charged offense contains a lesser-included offense that is necessarily committed when the greater offense is committed. A lesser-included offense is one that has no elements different from or in addition to the elements of the charged offense, making it “impossible to commit the greater [offense] without having committed the lesser.” State v. Rembert, 658 A.2d 656, 657 (Me.1995). However, every distinct method of committing the greater offense need not include every element of the lesser offense. State v. Luce, 394 A.2d 770, 773–74 (Me.1978). “The indicted offense will include a lesser offense whenever the State has alleged within its indictment ... a particular, defined manner of committing the crime which necessarily includes acts that must necessarily also be engaged in to constitute the commission of a lesser offense, as that offense is defined.” Id. at 773.

[¶ 11] Here, the elements of the greater offense, unlawful sexual contact, are the following: (1) the actor intentionally (2) subjects another person to any touching of the genitals or anus, (3) for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact, and (4) “[t]he other person has not expressly or impliedly acquiesced in the sexual contact.” 17–A.M.R.S. §§ 251(1)(D) (2011), 255–A(1)(A). Unlawful sexual touching requires that (1) the actor intentionally (2) subjects another person to any touching of the breasts, buttocks, groin, or inner thigh (3) for the purpose of arousing or gratifying sexual desire, and (4) “[t]he other person has not expressly or impliedly acquiesced in the sexual touching.” 17–A M.R.S. §§ 251(1)(G), 260(1)(A). Finally, the elements of assault are (1) intentionally, knowingly or recklessly (2) causing bodily injury or offensive physical contact (3) to another person. 17–A M.R.S. § 207(1)(A).

a. Comparing unlawful sexual touching to unlawful sexual contact

[¶ 12] Although the statutes criminalizing unlawful sexual contact and unlawful sexual touching are nearly identical, when read in conjunction with their statutory definitions, it is clear that they are functionally distinct. Compare17–A M.R.S. § 255–A (criminalizing unlawful sexual contact) and17–A M.R.S. § 251(1)(D) (defining sexual contact) with17–A M.R.S. § 260 (criminalizing unlawful sexual touching) and17–A M.R.S. § 251(1)(G) (defining sexual touching). As legally defined, “sexual contact” can be committed “for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.” 17–A M.R.S. § 251(1)(D) (emphasis added). However, “sexual touching” can only be committed “for the purpose of arousing or gratifying sexual desire.” 17–A M.R.S. § 251(1)(G). Although it may be argued that it is impossible to touch the “genitals or anus” without necessarily touching the “breasts, buttocks,groin, or inner thigh,” the statutes criminalize different conduct because unlawful sexual touching always requires proof of a sexual desire while unlawful sexual contact does not. As is evident from its statutory definition, sexual contact can be committed in two ways: (1) for the purpose of satisfying a sexual desire, or, (2) for the purpose of causing bodily injury or offensive physical contact. 17–A M.R.S. § 251(1)(D). Because the operative statutes incorporate the definitions, each criminalizes different conduct, and it is possible to commit unlawful sexual contact without committing unlawful sexual touching.

[¶ 13] In State v. Stewart, we held that aggravated assault and assault were not lesser-included offenses of elevated aggravated assault as charged by the State in that case. 2007 ME 115, ¶ 16, 930 A.2d 1031. We reasoned that although the State could have charged the crime in a way consistent with assault and aggravated assault, as...