State v. Strong

• Decision Date: 15 February 2013
• Docket Number: Docket No. Yor–13–55.
• Citation: 60 A.3d 1286,2013 ME 21
• Parties: STATE of Maine v. Mark W. STRONG Sr.
• Court: Maine Supreme Court

60 A.3d 1286

2013 ME 21

STATE of Maine

v.Mark W. STRONG Sr.

Docket No. Yor–13–55.

Supreme Judicial Court of Maine.

Argued: Feb. 13, 2013.

Decided: Feb. 15, 2013.

Kathryn L. Slattery, District Attorney, Justina A. McGettigan, Dep. Dist. Atty., and Patrick H. Gordon, Asst. Dist. Atty. (orally), for appellantState of Maine.

Daniel G. Lilley, Esq.(orally), and Tina Heather Nadeau, Esq., Daniel G. Lilley Law Offices, P.A., Portland, for appelleeMark W. Strong Sr.

Sarah A. Churchill, Esq., Nichols & Webb, P.A., Saco, on the briefs, for amicus curiaeAlexis Wright.

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

LEVY, J.

[¶ 1] The State of Maine appeals from an order of the trial court( Mills, J.) granting Mark W. Strong's motion to dismiss part of an indictment for failure to adequately charge forty-five counts of violation of privacy (Class D), 17–A M.R.S. § 511(1)(B), (3)(2012), and one count of conspiracy to commit a violation of privacy (Class E), 17–A M.R.S. §§ 151(1)(E),511(1)(B), (3)(2012).The State contends that the court erred in granting the M.R.Crim. P. 12(b)(2) motion because it was untimely and the indictment adequately charges offenses pursuant to the applicable statutes.We affirm the court's order.

I.BACKGROUND

[¶ 2] On October 3, 2012, Strong was charged by a fifty-nine-count indictment that included twelve counts of promotion of prostitution (Class D), 17–A M.R.S. § 853(2012); one count of conspiracy to commit promotion of prostitution (Class E), 17–A M.R.S. §§ 151(1)(E),853; forty-five counts of violation of privacy (Class D), 17–A M.R.S. § 511(1)(B), (3); and one count of conspiracy to commit a violation of privacy (Class E), 17–A M.R.S. §§ 151(1)(E),511(1)(B), (3).The counts charging a violation of privacy contained nearly identical language and read:

On or about between [month, date, and year] and [month, date, and year], in Kennebunk, YORK County, Maine, MARK W STRONG SR, did intentionally install or use on one or more occasions in a private place, without the consent of the person or persons entitled to privacy therein, a device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place.

Strong pleaded not guilty to all of the charges, and the court ordered that the parties file pretrial motions by December 6, 2012.

[¶ 3] On January 22, 2013, the first day of jury selection, Strong moved, pursuant to M.R.Crim. P. 12(b), to dismiss the forty-six counts of the indictment involving charges of violation of privacy.Two days later, and while jury selection was still in progress, the court held a hearing on the motion.At the hearing, Strong argued that the crime of violation of privacy, 17–A M.R.S. § 511(1)(B), does not occur if the alleged victim is engaged in criminal activity at the time of the violation of privacy.Specifically, Strong contended that an alleged victim who is, at the time of the alleged violation of privacy, engaging a prostitute in violation of 17–A M.R.S. § 853–B(2012), on premises controlled by the prostitute, is not a “person ... entitled to privacy” in a “private place” as those terms are used in section 511(1)(B).The State countered that the statute protects the privacy rights of victims, whether or not they are engaged in illegal activity.

[¶ 4]The court then inquired whether all of the affected counts of the indictment concern the same activity and, specifically, whether there was “any other purpose” for each alleged victim to have been at the alleged prostitute's “place of business.”In response, the State made an offer of proof to establish that the key facts underlying the privacy counts demonstrated that the alleged victims were “persons entitled to privacy” in a “private place,” as required by section 511(1)(B).

[¶ 5] In its offer of proof, the State represented that the alleged prostitute with whom Strong cooperated and conspired had engaged in sex for money with the victims in three locations:

It first starts out at [the alleged prostitute's] residence.And then there is a larger studio, where the windows are covered.And there is a third situation where there is, like, a two-room business suite that [the alleged prostitute] has rented on a second floor, that she has to unlock the door for people to come in and then lock the door when they come in.They arrive.Essentially, the door is locked....[O]n the ground floor, the windows were covered so people couldn't see in.And then when they were on the second floor, the windows weren't covered but people couldn't see in because they were on the second floor.

The State also represented that the victims went to these locations for the sole purpose of engaging a prostitute, and were with the alleged prostitute for “usually anywhere from 30 minutes up to several hours.”Further, “some went one or two times; some went many, many, many times.”

[¶ 6]The court granted Strong's motion and dismissed the privacy counts, concluding that based on the indictment and the State's offer of proof, the State could not prove the crimes as alleged.After a recess, the State moved the court to reconsider its dismissal, arguing, for the first time, that Strong's motion was not timely.The court denied the motion to reconsider, and the State filed this interlocutory appeal pursuant to 15 M.R.S. § 2115–A(1)(2012)andM.R.App. P. 21.Strong immediately filed in this Court a motion to dismiss the appeal, which we denied, and to expedite the appeal, which we granted.

II.DISCUSSION

[¶ 7]We consider two questions: (A) whether we should reconsider our denial of Strong's motion to dismiss this interlocutory appeal, and (B) whether the court erred in dismissing the privacy counts of the indictment.We address each in turn.

A.Interlocutory Appeal

[¶ 8]Title 15 M.R.S. § 2115–A(1) permits the State to bring certain pretrial interlocutory appeals on questions of law, including an appeal from a pretrial dismissal of an indictment, information or complaint; or from any other order of the court prior to trial which, either under the particular circumstances of the case or generally for the type of order in question, has a reasonable likelihood of causing either serious impairment to or termination of the prosecution.

When determining whether to exercise this jurisdiction, we“consider whether under all the circumstances the lower court's ruling has produced a significant setback to the State's attempt to bring the accused to justice.”State v. Drown, A.2d 466, 470–71 (Me.1982);see alsoState v. Brackett,2000 ME 54, ¶¶ 6–7, 754 A.2d 337.

[¶ 9] Here, the circumstances of the court's dismissal of the forty-six privacy counts present a reasonable likelihood that the State's prosecution of Strong has been seriously impaired.The dismissed privacy counts constitute the majority of the criminal counts brought against Strong.They allege criminal activity that is wholly separate from and not customarily associated with the remaining counts alleging crimes of promotion of prostitution.See17–A M.R.S. §§ 151(1)(E),853.Further, the legal basis for the dismissal presents a question of great public importance because it involves a criminal statute forbidding, among other things, video surveillance—a phenomenon that is lawful in many situations and increasingly common in modern society.Under these circumstances, the exercise of our authority to consider this interlocutory appeal pursuant to 15 M.R.S. § 2115–A(1) is warranted and we decline to reconsider our earlier denial of Strong's motion to dismiss the State's appeal.SeeDrown,447 A.2d at 470–71.

B.Dismissal of the Counts Charging Violation of Privacy

[¶ 10]The State contends that the court erred in dismissing the privacy counts because (1) Strong's motion was untimely, and (2) the indictment adequately charges a crime pursuant to 17–A M.R.S. § 511(1)(B).

1.Timeliness

[¶ 11]The State failed to raise its timeliness objection until after the court had heard and granted the motion to dismiss, and thus it has failed to preserve the issue for appellate review.SeeState v. Dolloff,2012 ME 130, ¶ 39 n. 11, 58 A.3d 1032(stating that “an objection must be made within a reasonable time of the offending [action] to be preserved”);see alsoM.R.Crim. P. 12(b)(2).

2.Adequacy of the Indictment

[¶ 12]“[A]n indictment is subject to dismissal for failure to state an offense only when the facts alleged on its face fail to make out an offense against the State,” which strips the court of jurisdiction to try the accused.State v. Storer,583 A.2d 1016, 1020–21(Me.1990).Although the State has not objected to it here, we have consistently rejected the practice of considering facts not alleged on the face of an indictment in determining whether the indictment charges an offense.See, e.g., id. at 1021;see also1 Cluchey & Seitzinger, Maine Criminal Practice§ 12.1 at IV–57 (Gardnered.1995).Some courts, however, have recognized a narrow exception to this rule in the “unusual circumstance” in which the motion presents a question of law, the material facts are not in dispute, and the prosecution does not object to the court's consideration of those facts.United States v. Yakou,428 F.3d 241, 247(D.C.Cir.2005)(quotation marks omitted);see alsoUnited States v. Flores,404 F.3d 320, 324–25(5th Cir.2005).

[¶ 13]This case presents just such an “unusual circumstance.”The challenge raised is a question of law, the proffered facts are not in dispute, and, most important, the State did not oppose the court's consideration of those facts.Moreover, the basis for the court's inquiry into the underlying facts is evident: the indictment provided no specific information regarding the alleged crimes.It omitted the names of the alleged victims; offered no description of the places at which the alleged violations of privacy took place; and did not allege that those places were, as the statute requires, places in which a person...