State v. Westgate

• Decision Date: 20 September 2016
• Docket Number: Docket: Yor-15-91
• Parties: State of Maine v. Nicholas E. Westgate
• Court: Maine Supreme Court

148 A.3d 716

2016 ME 145

State of Maine

v.Nicholas E. Westgate

Docket: Yor-15-91

Supreme Judicial Court of Maine.

Argued: December 10, 2015

Decided: September 20, 2016

Jamesa J. Drake, Esq. (orally), Drake Law, LLC, Auburn, for appellant Nicholas E. Westgate

Kathryn Loftus Slattery, District Attorney, Prosecutorial District 1, Alfred, and Anne Marie Pazar, Esq. (orally), Alfred, for appellee State of Maine

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

JABAR, J.

[¶ 1] Nicholas E. Westgate appeals from a judgment of conviction entered by the trial court (York County, O'Neil, J. ) on a jury verdict finding him guilty of five counts of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2015), and one count of visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B) (2015). At trial, the State sought to prove that Westgate committed each of the offenses against a victim under the age of twelve. Though the evidence established that the victim turned twelve during the general timeframe within which the crimes were allegedly committed, the State did not move to amend the charges, and neither party requested instructions regarding crimes of a lower class committed with the same conduct as that charged when that conduct is perpetrated against a victim who is at least twelve but not yet fourteen years old. See 17-A M.R.S. §§ 255-A(1)(E), 256(1)(A) (2015).

[¶ 2] The court did not deliver any lesser-included offense instructions, and it charged the jury—with the consent of both parties—that the jury did not have to determine with specificity the date or dates on which the sexual contact occurred. Thus, the court did not require the jury to find one element of the crime—that the victim was younger than twelve when the sexual contact occurred—in order to deliver a guilty verdict. On this record, we are unable to conclude that it was highly probable that the error did not affect the jury's verdict, and we are compelled to vacate the judgment.

I. BACKGROUND

[¶ 3] In 2012, Westgate was charged by indictment with five counts of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1), and one count of visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B). Although both crimes charged are defined as acts perpetrated against a victim under the age of twelve, see 17-A M.R.S. §§ 255-A(1)(E-1), 256(1)(B), the indictment alleged that the criminal acts occurred “[o]n or about Summer, 2009,” and indicated that the victim was born on July 20, 1997, and thus turned twelve during the summer of 2009.¹

[¶ 4] After granting several motions to continue the dates set for jury selection and trial, the court held a three-day jury trial in May 2014. Following the swearing in of the jury, the court clerk read the indictment aloud and told the jury that it was tasked with determining whether Westgate was guilty or not guilty of the charges alleged.² The court then delivered its preliminary charge to the jury, stating that the indictment was not evidence, and that the State bore the burden of proving the allegations in the indictment beyond a reasonable doubt. In the State's opening statement, the prosecutor alerted the jury to the fact that the alleged victim did not remember exactly when the incidents occurred.

[¶ 5] Viewing the evidence thereafter presented “in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt.” State v. Begin , 2015 ME 86, ¶ 2, 120 A.3d 97 (quotation marks omitted).

[¶ 6] In 2009, during the summer months of June, July, August, and September, the victim was living with her father and visited her mother, who was living with Westgate. The victim described five incidents of Westgate having sexual contact with her, one of which also involved him exposing his genitals to her and causing her to expose her genitals to him. The first incident of sexual contact occurred during a weekend in June, and the second incident occurred two weeks later. The third incident of sexual contact occurred on a Thursday in June. Though the victim provided no indication of when the fourth incident occurred, she testified that the fifth incident coincided with the episode of visual sexual aggression, and that the fifth incident occurred before her twelfth birthday.

[¶ 7] At the close of the State's case-in-chief, the court advised that it would likely instruct, with respect to the indictment's “[o]n or about” timeframe, that the State was not required to prove the date that the offenses occurred. Westgate did not object, and proceeded to mount a defense focused on more general timing and credibility.

[¶ 8] Westgate argued that he could not have committed the crimes during the summer of 2009 because he did not have any unsupervised contact with the victim during that period. He asserted that the victim's testimony about the timing of the offenses was not credible because it was inconsistent with her inability to pinpoint the timing with such specificity before trial, and it conflicted with statements that the victim made during pretrial interviews with the police and the prosecutor. After Westgate refreshed the victim's recollection by playing for her a recording of her pretrial interview with the police, the victim admitted that she had initially reported that Westgate committed the criminal conduct in August 2009. Westgate later played for the jury a recording of the police interview, during which the victim told the investigating officer that the incidents of sexual contact could have occurred “in June or August.” Westgate also played a recording of the victim's pretrial interview with the prosecutor, during which the victim stated that she could not remember the days of the week or the months when the incidents occurred, or how old she was at the time, but that she thought that she was “eleven or twelve.” On Westgate's request, the court admitted these recordings, but only to challenge the victim's credibility.

[¶ 9] At the close of the evidence, in describing the charges of unlawful sexual contact to the jury, the court paraphrased the language of the indictment, stating that each of the five charges alleged that “on or about the summer of 2009, ... Westgate, being at least three years older than [the victim], who was not his spouse, did intentionally subject her, who was in fact less than 12 years of age, to sexual contact.” In describing the charge of visual sexual aggression, the court again paraphrased the indictment, stating that the charge alleged that “on or about the summer of 2009 ... Westgate, having in fact obtained 18 years of age and for the purpose of arousing or gratifying sexual desire did expose his genitals to [the victim], or cause [the victim] to expose her genitals to him and [the victim] was not his spouse and had in fact not obtained the age of 12.” The court instructed the jury to consider each charge individually, and to determine whether each had been proved beyond a reasonable doubt.

[¶ 10] The court explained that the indictment referred “to the summer of 2009, for the time of these offenses.” With respect to this “on or about” timeframe, the court instructed the jury as follows:

The charges here claim that the crime was committed on or about a time, a specific time. The specific date of a crime need not be proven. It is enough if the State proves beyond a reasonable doubt that A, the crime charged was committed by the Defendant and B, it happened sometime within the timeframe suggested by all of the evidence in the case. The question is whether the crime was committed, not when it happened and that must be the princip[al] focus of your inquiry.

However, you may consider any evidence of uncertainty as to the dates of the alleged crime in deciding whether or not the offense has been proven beyond a reasonable doubt and in judging whether to believe witnesses and their ability to recall events and in determining whether the Defendant may have had the opportunity to commit the offense alleged.

(Emphasis added.) Neither Westgate nor the State objected to these instructions or requested any additional instructions.

[¶ 11] After retiring to deliberate, the jury asked for reinstruction on “issues involving timing and the indictment.” When the court indicated that it intended to repeat the instruction that it had already given regarding the indictment's “on or about” timeframe, again neither the State nor Westgate raised any objection. The court reinstructed the jury that the charges “reflect upon episodes that the State alleges took place in the summer of 2009,” and that the jury was to consider whether each episode had been proved beyond a reasonable doubt. It then repeated its “on or about” instruction, using the same language as it had used before, and again without any objection.

[¶ 12] Before the jury delivered its verdict, defense counsel stated on the record that Westgate had decided not to request a lesser-included offense instruction “because [he] didn't want to concede to the jury or have them misconstrue it as a concession that he committed any wrongful act at all. [His] defense was all or nothing, and that's the way [he] presented it.” The State did not request a lesser-included offense instruction, and none was given.

[¶ 13] The jury returned a verdict of guilty on all six counts as charged and the court entered a judgment of conviction on the verdict. The court imposed a sentence of ten years' imprisonment with all but eight years suspended, followed by ten years of probation, on each of the charges of unlawful sexual contact, with the sentences on each charge to run concurrently. On the charge of visual sexual aggression, the court imposed a concurrent sentence of twelve months. Westgate filed an application to allow an appeal from his sentence, which we granted and consolidated with his timely appeal from the judgment of conviction. See 15 M.R.S. §§ 2115, 2151 (2015) ; M.R. App....