State v. Westgate

234 A.3d 230

STATE of Maine

v.Nicholas E. WESTGATE

Docket: Yor-19-215

Supreme Judicial Court of Maine.

Argued: January 9, 2020

Decided: May 26, 2020

Revised: June 23, 2020

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Nicholas E. Westgate

Kathryn L. Slattery, District Attorney, and Matthew Richwalder, Asst. Dist. Atty. (orally), Prosecutorial District #1, Alfred, for appellee State of Maine

Panel: MEAD, GORMAN, JABAR, and HUMPHREY, JJ.^*

JABAR, J.

[¶1] Nicholas E. Westgate appeals from a judgment of conviction of five counts of unlawful sexual contact, (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2020), and one count of visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B) (2020), entered after a jury trial. We conclude that Westgate received a fair trial with properly admitted expert testimony and a clear guilty verdict. We affirm the judgment.

I. BACKGROUND

[¶2] The following facts are drawn from the evidence admitted at trial, viewed in the light most favorable to the State. See State v. Graham , 2015 ME 35, ¶ 2, 113 A.3d 1102.

[¶3] During the month of June 2009, Westgate committed five separate incidents of unlawful sexual contact and one incident of visual sexual aggression, all against an eleven-year-old victim.

[¶4] 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).

A. First Trial

[¶5] Following several motions to continue the dates set for jury selection and trial, the court (York County, O'Neil, J. ) held a three-day jury trial in May 2014. On May 21, 2014, the jury returned a guilty verdict on all counts. Following this first trial, Westgate appealed, arguing that the trial court provided deficient jury instructions. On September 20, 2016, we vacated the jury's verdict, agreeing that the jury was not properly instructed. We determined that "[t]he trial 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." State v. Westgate , 2016 ME 145, ¶ 19, 148 A.3d 716.

B. Second Trial

[¶6] A second trial began in May 2017. After deliberations, the jury was deadlocked. The court (Douglas, J. ) discharged the jury and declared a mistrial.

C. Third Trial

[¶7] The third trial—the one at issue here—took place over three days in October 2018. Prior to the trial, the court held a motion hearing addressing the State's motion in limine to introduce expert testimony. The proposed witness was trained in the forensic interviewing of child victims and was the program manager of the Children's Advocacy Center of York County. The State argued that because the victim had been interviewed by law enforcement, the witness's expertise would help the jury understand and evaluate the interview methods used. The State indicated that it would not ask the expert witness to testify as to whether the victim was telling the truth. The court granted the motion in limine, allowing the witness to testify.

[¶8] On the first day of trial, the State's witnesses testified that the victim disclosed incidents of sexual acts to them. The witnesses also testified to the victim's manifestations of anxiety, and other changes in her behavior, during the summer when the incidents occurred.

[¶9] On the second day of trial, the State called its expert witness.¹ The expert testified that methods of interviewing child victims of sexual abuse had evolved in the past decade.

[¶10] On the final day of the trial, Westgate testified that he never sexually touched the victim. At the close of evidence, the court instructed the jury—over Westgate's objection—with the State-requested instruction on lesser-included charges. The court instructed the jury,

If the State does not prove beyond a reasonable doubt each and every one of those facts, as I have just outlined them with respect to each particular count, you must find Mr. Westgate not guilty of that particular count or counts.

If you conclude with respect to any of the counts, any or all of the counts in Counts 1 through 5, that the State has proven all but the age, in other words, the State has proven beyond a reasonable doubt that Nicholas Westgate intentionally subjected [the victim] to sexual contact in ... the summer of 2009 and at the time he was three years—at least three years older than she was and she was not his spouse, but the State has not proven beyond a reasonable doubt that the offense or offenses occurred prior to her 12th birthday but you find that the State has proven beyond a reasonable doubt that for that count or counts that the unlawful sexual contact occurred prior to her 14th birthday, then you would convict Mr. Westgate of the lesser included offense of unlawful sexual contact against a person under the age of 14 for that particular count or counts.

On the other hand, if you find that the State has not proven beyond a reasonable doubt any one of the facts required to be proven as outlined above with respect to the lesser included offense, including, without limitation, that the offense occurred prior to [the victim's] 14th birthday, then you must acquit Mr. Westgate of the lesser included offense with respect to any particular count or counts.

The court provided similar instructions as to Count 6.

[¶11] During its deliberations, the jury submitted notes with questions. Specifically, the jury asked for written copies of the six charges, "to be clear on each one." Furthermore, the jury asked, "If we cannot agree on guilty for under 12, will we be then asked about the under 14 charge?" The court, after conferring with Westgate and the State, provided the jury with the written copies of the six charges and responded to the jury's second question with the word, "Yes."

[¶12] After deliberating for approximately thirty minutes, the jury returned a unanimous verdict finding Westgate guilty of all charges. The jury's verdict was delivered to the court as follows:

THE CLERK: Members have you agreed upon a verdict?

THE FOREPERSON: We have.

JURORS: Yes.

THE CLERK: What say you, Mr. Foreperson, is the defendant Nicholas Westgate guilty or not guilty of the offense of unlawful sexual contact whereof defendant stands charged in Count 1?

THE FOREPERSON: Guilty.

THE CLERK: Guilty or not guilty of the offense of unlawful sexual contact whereof defendant stands charged in Count 2?

THE FOREPERSON: Guilty.

THE CLERK: Guilty or not guilty of the offense of unlawful sexual contact whereof defendant stands charged in Count 3?

THE FOREPERSON: Guilty.

THE CLERK: Guilty or not guilty of the offense of unlawful sexual contact whereof defendant stands charged in Count 4?

THE FOREPERSON: Guilty.

THE CLERK: Guilty or not guilty of the offense of unlawful sexual contact whereof defendant stands charged in Count 5?

THE FOREPERSON: Guilty.

THE CLERK: Guilty or not guilty of the offense of visual sexual aggression against a child whereof defendant stands charged in Count 6?

THE FOREPERSON: Guilty.

THE CLERK: Mr. Foreperson, have you correctly report[ed] the verdict?

THE FOREPERSON: I have.

THE CLERK: So say you, Mr. Foreperson?

THE FOREPERSON: Yes.

THE COURT: So say you all?

JURORS: Yes.

After the verdict was read, the jury was polled at Westgate's request. Westgate made no objections at the reading of the verdict or at any other time before this appeal.

[¶13] On February 5, 2019, the court sentenced Westgate to ten years’ imprisonment with all but sixty-eight months suspended on Count 5, with ten years of probation, and concurrent sixty-eight-month sentences on the other four counts of unlawful sexual contact (Counts 1–4). As to the charge of visual sexual aggression, the court imposed a concurrent sentence of two years’ imprisonment. The court imposed $210 in fines.

[¶14] On February 7, 2019, the State filed a motion for correction or reduction of sentence. The motion was continued and was later granted on May 6, 2019. The court amended Westgate's sentences for Counts 1 to 4 to increase them from sixty-eight months to ninety-six months. The suspended portion of the sentence on Count 5 was increased to ninety-six months. As to Count 6, Westgate's sentence was reduced to twelve months. Save for those alterations, Westgate's sentence remained unchanged. Westgate timely appealed on May 15, 2019. M.R. App. P. 2B(b)(2)(D).

II. DISCUSSION

[¶15] On appeal, Westgate argues that (A) the court erred in accepting the jury's verdict, (B) prosecutorial misconduct deprived him of a fair trial, and (C) the court erred in admitting the expert's testimony. We address each argument in turn.

A. Jury's Verdict

[¶16] Westgate argues that the court erred by accepting the jury's verdict because, he contends, the verdict was ambiguous.² Because Westgate did not raise this issue in the trial court—indeed, his attorney contributed to the court's resolution of the jury's questions³ —we review for obvious error. See State v. Schofield, 2005 ME 82, ¶¶ 28-36, 895 A.2d 927 ; Clewley v. Whitney , 2002 ME 61, ¶ 10, 794 A.2d 87. "To demonstrate obvious error, the defendant must show that there is (1) an error, (2) that is plain, and (3) that affects substantial rights." State v. Dolloff , 2012 ME 130, ¶ 35, 58 A.3d 1032 (quotation marks omitted). "Even if these three conditions are met, we will set aside a jury's verdict only if we conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings." Id.

[¶17] Westgate argues that the verdict here is ambiguous because the jurors could have been referring to either the named counts or their lesser-included charges. We disagree. When the jury asked for clarification of the procedure for considering the lesser-included charge, the court instructed the jurors that if they could "not agree on guilty under 12," they would then "be asked...