State v. Seamon

165 A.3d 342

STATE of Maine

v.Andrew L. SEAMON

Docket: Ken–16–455

Supreme Judicial Court of Maine.

Argued: May 9, 2017

Decided: June 20, 2017

Caitlin Ross Wahrer, Esq. (orally), Chester & Vestal, P.A., Portland, for appellant Andrew L. Seamon

Maeghan Maloney, District Attorney, and Kristin Murray–James, Asst. Dist. Atty. (orally), Prosecutorial District IV, Augusta, for appellee State of Maine

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

MEAD, J.

[¶ 1] Andrew L. Seamon appeals from a judgment of conviction of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(E–1) (2016), entered by the trial court (Kennebec County, Murphy, J. ) following a jury trial. Seamon contends that the court erred by denying a motion to suppress statements he made during an interview with a detective because his statements were not made voluntarily. He also appeals his sentence, arguing that the court erred by considering conduct of which he had been acquitted and unreliable evidence in setting his basic sentence. Finally, Seamon contends that the court erred by instructing him to register as a Tier III registrant pursuant to the Sex Offender Registration and Notification Act of 2013 (SORNA 2013) instead of as a lifetime registrant pursuant to the Sex Offender Registration and Notification Act of 1999 (SORNA 1999). We affirm both the judgment and the sentence, but we clarify that Seamon will be required to register pursuant to SORNA 1999 upon his release from incarceration.

I. BACKGROUND

[¶ 2] Viewed in the light most favorable to the court's order, the record on the motion to suppress supports the following facts. See State v. Wiley , 2013 ME 30, ¶ 2, 61 A.3d 750.

[¶ 3] On June 5, 2014, Detective Tori Tracy of the Augusta Police Department went to interview Andrew Seamon at his friend's home in Augusta. She had been investigating allegations of sexual abuse by Seamon against a child. Tracy drove an unmarked police cruiser and wore plain clothes. Her badge and handgun were covered by clothing and were not immediately apparent. She carried a concealed tape recorder to secretly record her conversation with Seamon.

[¶ 4] When Detective Tracy first approached Seamon, he did not know why she was there. He initially believed it might be related to a pending foreclosure on his home. Seamon agreed to speak with Detective Tracy; she let him choose where he wanted to talk, and he selected a spot outside his friend's home. She told him that she was only there to talk to him and that she would be leaving alone that day, implying that she would not arrest him. Tracy did not inform Seamon that the interview was being recorded and did not give Seamon Miranda warnings.

[¶ 5] Detective Tracy explained that she was there regarding Seamon's involvement with a child, and Seamon understood what she was referring to. Seamon told Tracy that he was nervous and "not in good shape at all," but that he would cooperate with her. He denied engaging in any sexually inappropriate conduct with any children. Tracy encouraged Seamon to tell her the truth about what had happened. Seamon never admitted to engaging in a sexual act with the child, but described several instances of potentially inappropriate things he may have done or said to the child. After about forty-five minutes, Detective Tracy attempted to end the conversation, but Seamon asked her if she could stay to talk to him longer. Seamon asked her if he was going to be arrested; she explained the court process and said that Seamon might be arrested at some point in the future if the case went forward. The entire interview lasted about one hour, after which Detective Tracy left alone in her police cruiser.

[¶ 6] On June 27, 2014, Andrew Seamon was indicted on two counts of gross sexual assault (Class A), 17–A M.R.S. § 253(1)(C) (2016). In November, a superseding indictment was returned that added one count of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(E–1).

[¶ 7] On February 19, 2016, Seamon filed a motion to suppress the statements he made to Detective Tracy, alleging that the statements were made involuntarily and in violation of Miranda . A hearing on the motion was held on May 23, 2016. At the hearing, Seamon described how, at the time of the interview, he was "bewildered," suicidal, and felt that his "life was upside down." He had been feeling "extremely depressed" and had, in the months prior to the interview, been in the psychiatric unit of a hospital. He testified that he had submitted to Detective Tracy's authority and that he had not answered her questions of his own free choice because he was not thinking rationally at that time. The entire recording of his conversation with Detective Tracy was admitted in evidence at the motion hearing.

[¶ 8] In an order dated June 16, the court (E. Walker, J. ) denied the motion. The court determined that Seamon was not in custody for Miranda purposes, and it determined that his statements were made voluntarily. The court found that the interview occurred in a place of Seamon's choosing, which was a location he was comfortable in; Seamon was told several times that he was not going to be arrested that day; only one plain-clothed officer was present and she did not display her gun; Seamon and the officer were familiar with one another and "on friendly terms"; the questioning was "gentle and not harsh or accusatory"; and Seamon's "demeanor seemed calm and in control." The court found "no evidence of any coercion or threats or trickery made by police," and determined that Seamon "was not made any promises or offered any deals" when he made the statements. The court concluded that the State had proved beyond a reasonable doubt that Seamon's statements "were clearly the choice of a rational and clear thinking mind," and under all of the circumstances, the "admission of [his] statements would be fundamentally fair."

[¶ 9] The court (Murphy, J. ) held a jury trial on August 30–September 1, 2016. At the trial, the child testified and described several discrete instances of Seamon having sexual contact with him: first, Seamon "messed around with" and "jiggl[ed]" the child's genitals; another time, Seamon lubricated the child's genitals and made the child penetrate Seamon's anus; on another occasion, Seamon performed oral sex on the child; and, after the child had disclosed the previous incidents to other children, Seamon "did the same thing he did the first time ... messed around with [the child's] penis." A redacted version of the recording of Seamon's interview with Detective Tracy was played for the jury.

[¶ 10] The jury was unable to reach a verdict on the count of gross sexual assault pertaining to the alleged anal-genital contact¹ and found Seamon not guilty on the count of gross sexual assault alleging oral-genital contact. The jury found Seamon guilty on the count charging unlawful sexual contact.

[¶ 11] The parties filed sentencing memoranda on September 19, 2016, and the court held a sentencing hearing on September 21, 2016. At the sentencing hearing, Seamon argued that information related to the gross sexual assault charges was "not reliable" and should not factor into sentencing. The court responded, "Just to be clear ... I don't intend to consider any of the allegations of gross sexual assault in the sentencing analysis. I don't think that I can do that based upon the verdicts, so—but I think—what I know I have to do is address the conviction for unlawful sexual contact, Class B."

[¶ 12] In setting Seamon's basic sentence,² the court explained:

[T]he [c]ourt would consider that we're talking about more than one incident as described by the victim. And the [c]ourt would find based on what evidence it believes is factually reliable and relevant, and those are—that's the terminology from the Hewey and other cases, that there were three [discrete incidents] testified to by [the child].

The first one is described at the very beginning of his testimony where he talks about [the defendant] wiggling his genitalia. There is a second incident where he describes on a different—definitely on a different day or a different time frame the defendant lubricating the genitalia of [the child]. And then there is a third incident where he states that after about a month or so there was another incident where he says he did it again. The state asks what he meant by that, and he said—he referred to again the defendant touching his penis.

The court set the basic sentence in the "mid-range" of the zero-to-ten-year continuum for a Class B conviction, see 17–A M.R.S. § 1252(2)(B) (2016), for a basic sentence of five to six years.

[¶ 13] Moving on to the second step of the sentencing process, the court discussed aggravating factors—that the child was eight years old at the time and may have a developmental disability, that Seamon told the child he would kill himself if the child told anyone, and that Seamon had told the child he was engaging in a religious sin—and mitigating factors—namely that Seamon had accepted some responsibility for his actions and apologized to the victim's family—and set Seamon's maximum sentence at nine years. The court found that Seamon would benefit from counseling and that he expressed an interest in the rehabilitative process. It considered the deterrent effect of the sentence it might impose, as well as the gravity of the offense, and arrived at a final sentence of nine years' incarceration, with all but six years suspended, followed by twelve years of probation. A condition of Seamon's probation is that he have no direct or indirect contact with the child.

[¶ 14] Near the end of the sentencing hearing, the court explained that "Mr. Seamon will have to register under the Maine Sex Offender Registry and Notification Act as a [T]ier III offender, which is a lifetime registration requirement.... And I also have a form that we have to give you, Mr. Seamon, that notifies you about your obligation to register under the...