State v. Hodgdon

164 A.3d 959

STATE of Maine

v.Benjamin H. HODGDON II

Docket: Han–16–378

Supreme Judicial Court of Maine.

Argued: April 12, 2017

Decided: June 20, 2017

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Benjamin H. Hodgdon II

Toff Toffolon, Dep. Dist. Atty. (orally), Ellsworth, for appellee State of Maine

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

JABAR, J.

[¶ 1] Benjamin H. Hodgdon II appeals from a judgment of conviction entered by the trial court (Hancock County, R. Murray, J. ) on a jury verdict finding him guilty of one count each of gross sexual assault (Class A), 17–A M.R.S.A. § 253(1)(B), (4) (Supp. 2000);¹ unlawful sexual contact (Class C), 17–A M.R.S.A. § 255(1)(C), (2) (Supp. 2000);² and sexual abuse of a minor (Class C), 17–A M.R.S.A. § 254(1)(A), (3)(A) (Supp. 2000).³ He contends on appeal, inter alia, that the trial court's jury instructions as to the counts for gross sexual assault and unlawful sexual contact were in error because the instructions did not require the jury to find beyond a reasonable doubt that the victim was not yet fourteen years old when those crimes occurred. We disagree and affirm the judgment.

I. BACKGROUND

[¶ 2] The jury rationally could have found the following facts beyond a reasonable doubt. See State v. Troy , 2014 ME 9, ¶ 3, 86 A.3d 591.

[¶ 3] Hodgdon worked as a sixth, seventh, and eighth grade teacher from 1991 until 2003. The victim was born on March 16, 1986, and attended the same school where Hodgdon taught; Hodgdon was her teacher, tutor, and cross-country coach. During the summers of 1998, 1999, and 2000, she worked for Hodgdon's lawn care business mowing lawns.

[¶ 4] When she was in seventh or eighth grade, Hodgdon began a sexual relationship with the victim. Hodgdon initiated the relationship by kissing the victim and touching her genitals both over and underneath her clothing. On a later occasion, Hodgdon and the victim had sexual intercourse after she had spent the evening babysitting his children. Over the course of their relationship they had sexual intercourse at Hodgdon's home, in his modular classroom, and in his truck both at the school parking lot and at lawn care job sites. Hodgdon also on one occasion performed oral sex on her at his relative's house in Northeast Harbor. The victim estimated that, in total, they had sex between thirty and forty times before she completed junior high.

[¶ 5] Hodgdon and the victim remained in contact after she finished junior high school in 2000. She worked for him tending lawns during the summers of 2004 and 2006, and in the summer of 2004, when the victim was eighteen, Hodgdon performed oral sex on her in his home. They remained in contact both in person and by phone until July 2013.

[¶ 6] The victim reported the crimes to the Hancock County Sheriff's Office in 2013. Hodgdon was charged by indictment on April 10, 2014, with four counts of gross sexual assault (Class A), 17–A M.R.S.A. § 253(1)(B), (4) ; two counts of unlawful sexual contact (Class C), 17–A M.R.S.A. § 255(1)(C), (2) ; and two counts of sexual abuse of a minor (Class C), 17–A M.R.S.A. § 254(1)(A), (3)(A). He pleaded not guilty to all charges.

[¶ 7] Hodgdon filed a motion to dismiss on August 11, 2014, contending that the State permitted the spoliation of the victim's cellphone—from which an investigating detective had downloaded a recording purportedly made by the victim of a conversation between Hodgdon and herself—arguing that digital data on the lost or destroyed phone constituted "crucial, exculpatory, irreplaceable evidence." The trial court (Mallonee, J. ) held a hearing on the motion on December 17, 2014, and denied it on March 26, 2015.

[¶ 8] A jury trial was held on March 14, 15, and 16, 2016,⁴ and the jury returned a guilty verdict as to Count 5, gross sexual assault (Class A), 17–A M.R.S.A. § 253(1)(B), (4) ; Count 6, unlawful sexual contact (Class C), 17–A M.R.S.A. § 255(1)(C), (2) ; and Count 7, sexual abuse of a minor (Class C), 17–A M.R.S.A. § 254(1)(A), (3)(A). The jury acquitted Hodgdon of all other charges, and the court (R. Murray, J. ) denied his motion for judgment of acquittal as to Counts 5, 6, and 7.

[¶ 9] On the charge of gross sexual assault, Hodgdon was sentenced to eleven years' imprisonment with all but three years and six months suspended and six years of probation. On each of the charges of unlawful sexual contact and sexual abuse of a minor, he was sentenced to three years' imprisonment, both to run concurrently with his sentence for gross sexual assault. He timely appeals. See M.R. App. P. 2(b)(2)(A).

II. DISCUSSION

[¶ 10] Hodgdon raises three issues on appeal that we will address.⁵ He contends that (1) the jury instructions as to Counts 5 and 6 relieved the State of its burden of proving beyond a reasonable doubt that the victim was under fourteen years old at the time the offenses were committed, (2) the broad range of time encompassed by the indictment exposes him to double jeopardy, and (3) there was not sufficient evidence for the jury to find beyond a reasonable doubt that Hodgdon had sex with the victim before she attained the age of fourteen.

A. Jury Instructions

[¶ 11] Hodgdon's argument regarding the victim's age concerns the "on or about" instruction the court provided following its recital of the elements of the crimes. To return a guilty verdict on Count 5, gross sexual assault, and Count 6, unlawful sexual contact, the jury was required to find that at the time of the alleged offenses the victim was less than fourteen years old. See 17–A M.R.S.A. § 253(1)(B) ; 17–A M.R.S.A. § 255(1)(C).

The court instructed the jury as to each element of these crimes, including the victim's age, then instructed the jury that because the indictment "charges that these various crimes were committed ‘on or about’ various" dates, the specific date of each crime "need not be proven." Instead, the court instructed, "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 dates suggested by the evidence in the case." According to Hodgdon, this "on or about" instruction allowed the jury to return a guilty verdict without finding that the victim was under fourteen at the time of the alleged incidents.

[¶ 12] "We review jury instructions as a whole ... to ensure that they informed the jury correctly and fairly in all necessary respects of the governing law." State v. Tucker , 2015 ME 68, ¶ 11, 117 A.3d 595 (quotation marks omitted). Because Hodgdon did not object to the court's jury instructions at trial, we review his unpreserved challenge to those instructions for obvious error. See State v. Lajoie , 2017 ME 8, ¶ 13, 154 A.3d 132. To prevail on appeal, Hodgdon "must demonstrate that (1) there is an error, (2) that is plain, (3) that affects substantial rights, and, if so, (4) that it is error that seriously affects the integrity, fairness, or public reputation of judicial proceedings." Id.

[¶ 13] We recently held in State v. Westgate that the jury instructions provided in a similar sex crime case "plainly and erroneously suggested that the jury could bypass the issue of whether the victim was younger than [the statutory cut-off age] when the offenses were committed." 2016 ME 145, ¶ 22, 148 A.3d 716. In Westgate , the indictment charged the defendant with sex offenses against a child under twelve occurring "[o]n or about Summer, 2009," when the victim turned twelve on July 20 of that year. Id. ¶ 3. The trial court in Westgate provided an "on or about" instruction nearly identical to the instruction at issue here. Id. ¶ 10. The jury requested reinstruction as to timing, and the court repeated the "on or about" instruction. Id. ¶ 11. We vacated the defendant's conviction because the court "read the indictment to the jury, but did not specify what the elements of the criminal charges were, including the element that the victim must have been under the age of twelve when the conduct occurred." Id. ¶ 19. The only "suggest[ion] that the jury had to find that the victim was under twelve" was the court's reading of the indictment; the "incomplete" instructions therefore "affected [the defendant's] substantial rights and the fairness of his trial." Id. ¶¶ 22–23.

[¶ 14] Unlike the Westgate instructions in which only the indictment was read to instruct the jury as to the required element of the victim's age, id. ¶ 19, the trial court here provided instructions to the jury that consisted of each element of the offenses, including the victim's age. Even before the State's case-in-chief, the court provided a legal road map for the jury, telling them that "under the laws of the state of Maine a person is guilty of the crime of gross sexual assault" if "at the time of the sexual act the [victim] has not attained the age of 14 years." The court also told the jury at that time that "a person is guilty of unlawful sexual contact if ... the [victim] is less than 14 years of age." After closing arguments, the court instructed the jury as to Count 5 that the State must prove beyond a reasonable doubt that "on or about January 15, 2000, ... [the victim] had not attained that age of 14 years," and as to Count 6 that "on or about February 15, 2000, ... [the victim] was less than 14 years of age."

[¶ 15] Nevertheless, Hodgdon contends that the "on or about" instructions relieved the State of proving beyond a reasonable doubt that the victim was under fourteen when the incidents alleged in Counts 5 and 6 occurred. We disagree. The court's "on or about instruction" informs the jury that the State must prove "beyond a reasonable doubt that ... the crime charged was committed by the Defendant." The court clearly instructed the jury that the burden of proof remained with the State to prove each element of the crimes charged.

[¶ 16] Although the "on or about" language—instructing the jury to determine whether the crime...