U.S. v. Raymond, Criminal No. 09-144-P-H

• Decision Date: 07 May 2010
• Docket Number: Criminal No. 09-144-P-H
• Citation: 710 F.Supp.2d 161
• Parties: UNITED STATES of America v. James RAYMOND, Defendant.
• Court: U.S. District Court — District of Maine

710 F.Supp.2d 161

UNITED STATES of America

v.James RAYMOND, Defendant.

Criminal No. 09-144-P-H.

United States District Court,

D. Maine.

May 7, 2010.

Craig M. Wolff, Assistant United States Attorney, Office of the United States Attorney, Portland, ME, for United States of America.

Richard L. Hartley, Bangor, ME, for Defendant.

FINDINGS OF FACT UNDER FED. R. CRIM. P. 23(c), CONCLUSIONS OF LAW, AND FINDING OF GUILT

D. BROCK HORNBY, District Judge.

The defendant has requested that the court state its specific findings of fact for this nonjury trial as provided by Fed.R.Crim.P. 23(c).

Findings of Fact

I find the facts beyond a reasonable doubt.

Early in the morning of July 14, 2007, the defendant James Raymond, a single man in his mid-twenties, took an eleven-year-old girl and her nine-year-old sister unescorted from their home in Auburn, Maine to his home in Auburn, Maine for some amount of time, then drove them to Canobie Lake Park, an amusement park in Salem, New Hampshire, for a day of activity on the park rides, and finally back to their home in Auburn, Maine late at night. Raymond was a public school music teacher in whose class the eleven-year-old had been enrolled during the school year then just ended. She had also participated in the school chorus that Raymond directed. Although Raymond told the girls' mother that someone else would accompany them, in fact no one else did, on the trip to either the house or the amusement park. Raymond may have had more than one motive for the entire excursion, but one motive was sexual contact with the eleven-year-old if the opportunity should arise. The girls were dressed in their bathing suits for water rides at the amusement park. While in line for a water ride, Raymond touched the eleven-year-old's buttocks intentionally three times, each time saying he was sorry. For reasons I explain below, I find that he did so not accidentally but for sexual gratification. On the way home, the eleven-year-old sat in the back seat of the car, the nine-year-old in the front seat.

On August 13, 2007, James Raymond drove the same eleven-year-old girl and her nine-year-old sister from their home in Auburn, Maine to Canobie Lake Park in New Hampshire for another day of activity on the park rides and then back to their home in Auburn, Maine late at night. Once again, Raymond told the girls' mother that someone else would accompany them, but in fact no one did. Raymond may have had more than one motive formaking the trip, but one motive was sexual contact with the eleven-year-old if the opportunity should arise. After losing an argument with her younger sister over who could sit in the back seat, the eleven-year-old sat in the front seat for the drive home at night. Raymond touched her buttocks while she pretended to be asleep. For reasons I explain below, I find that he did so for sexual gratification.

I base these findings, including the purpose of the touching, upon: (a) the testimony of the eleven-year-old (age fourteen at trial) whom I found to be believable as to the buttocks-touching for each trip; (b) another young girl's testimony that in October 2007 Raymond touched her buttocks under her skirt at school (defense cross-examination of the girl revealed that this conduct led to a state conviction for Raymond); (c) Raymond's own admissions, during a videotaped interview ¹ in October 2007, to his physical urge to touch young girls' buttocks and to masturbating "once or twice a week" about "kids" (he said "nine times out of ten it's not a kid from school" and that "a little grope up someone's skirt isn't something that I see as something worth masturbating to"); and (d) Raymond's demonstrated interest in, and inappropriate behavior with, this eleven-year-old while sitting at the back of a charter bus at night returning from a June 2007 school chorus bus trip to the same New Hampshire amusement park, as testified to by independent observers (two other students) on the bus.² Both students testified that on that late night trip a few children were talking about what was going on in the back of the bus, where Raymond was sitting. One student witness said that she saw a blonde-haired girl (later identified by the other student witness as the eleven-year-old) leaning on Raymond as if he had his arm around her. (Raymond testified that she fell asleep with her head on his shoulder, but denied that he put his arm around her or otherwise touched her.) The other student testified that she saw Raymond "rubbing his hand on [the eleven-year-old's] legs and stuff" and that his hand got close to her butt. She also testified that later she and other children asked the eleven-year-old if she liked it and why she had let Raymond do it. The eleven-year-old testified that on this trip Raymond put his hand inside her shirt on her belly and that she slapped it away (she reported that he said that he was "sorry" and "didn't mean to") and that he put his hand on the back of her leg toward her butt twice.

There was also no evidence that Raymond took any students to an amusement park during the summer of 2007 other than this eleven-year-old, with whom he had behaved inappropriately on the June bus trip, and her sister. When asked at trial if he touched the eleven-year-old's butt during the July trip, instead of a straight-out denial, Raymond's answer was "I do not recall," and he then went on todiscuss the possibilities of, and reasons for, possible accidental touching. Eventually, he did directly deny that he intentionally touched the eleven-year-old. Likewise, when asked at trial if he touched the eleven-year-old's butt during the August 2007 trip, Raymond's first answer was "No, not that I recall, unless there was any accidental touching, you know in waiting for the rides, but there was nothing I recall." Eventually, he denied touching the eleven-year-old's buttocks, breasts, or "privates" at any time during the August 2007 trip. I conclude that Raymond had arranged the circumstances to provide an opportunity for touching.

For all these reasons, I conclude that Raymond purposely touched the eleven-year-old's buttocks on both trips and that he did so for sexual gratification, not by accident.

The occurrence and the dates of the June, July, and August trips, the identities of the participants in those trips, and the age of the victim were all undisputed.

Credibility Issues

The eleven-year-old did not reveal the touchings at the time they occurred. When Raymond's arrest on the state charge involving another girl became public in October 2007, Raymond called the eleven-year-old's mother early the next morning. The mother then called the school to express concern about Raymond's phone call. As a result, a police officer who works at the school interviewed the mother and the eleven-year-old that day. At that time, the eleven-year-old revealed to the officer that Raymond touched her on the June school bus trip, but made no reference to the fact that the July and August trips to the park with Raymond had even occurred. The police officer escorted the eleven-year-old to an evaluation at a sexual assault crisis center in Lewiston about a week later. Then for the first time she revealed that Raymond touched her buttocks three or four times on the July trip, but initially said that she didn't know whether it was accidental or intentional and that nothing else had happened. ³ At trial, she testified that Raymondhad touched her buttocks intentionally, and she also testified that Raymond touched her buttocks on the ride home on the August trip.

This is a case where only two people know what actually happened on the two summer trips: the defendant Raymond and the eleven-year-old. One (or both) of them testified falsely, a determination that I must make. Certainly Raymond had motivation to lie. His liberty and music teaching career both are at stake. His attempts to explain away the damaging statements that he made about his interest in young girls to the Auburn detective during the videotaped interview were wholly unpersuasive. His unfulfilled assurances to the girls' mother that others would accompany him on the two trips are highly troubling, regardless of his explanation that at the last minute his fourteen- or fifteen-year-old cousin could not come. Also troubling is the fact that the only children whom Raymond took to the park that summer were these two, one of whom had been the object of his attentions during the June bus trip incident. Did the victim have motivation to lie? First, I place no weight on the evidence that emerged during the trial that Raymond may have embarrassed her at some point during the school year. This appears to have been a non-event to everyone. The eleven-year-old could not remember what the embarrassment was, but testified convincingly that she "let it go" and that her basic view of Raymond was just that he was "weird." (I attach no importance to that term as a child's description of an adult, particularly a teacher.) The mother testified that at a school chorus performance during the school year, Raymond had publicly moved the eleven-year-old to a different location within the chorus, thereby embarrassing her, but that he later went to the eleven-year-old's classroom and apologized to her. Raymond testified that he didn't even know that it was an issue. Children are constantly being "embarrassed" by adults, and I see no reason to conclude that some sort of revenge was at work, especially after months had passed and Raymond ostensibly had been a benefactor to the girls in taking them twice, free of charge, to the amusement park. Second, the defendant argues that this was a young girl and her mother falsely creating their own event after the media furor and intensive law enforcement investigation arose over Raymond's state arrest and after adults-such as law enforcement and others-told the eleven-year-old that Raymond was a bad person. The argument is that the ever-increasing seriousness of the...