on Briefs November 19, 2015.
briefs: Walter F. McKee, Esq., and James A. Billings, Esq.,
McKee Billings, LLC, P.A., Augusta for appellant Travis L.
Maloney, District Attorney, and David M. Spencer, Asst. Dist.
Atty., Prosecutorial District IV, Augusta, for appellee State
SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HJELM, JJ.
[¶1] Travis L. Lyon appeals from a judgment
of conviction entered in the trial court (Kennebec County,
Murphy, J. ) after a jury found him guilty of one
count of unlawful sexual contact (Class B), 17-A M.R.S.
§ 255-A(1)(E-1) (2015), and two counts of unlawful
sexual contact (Class C), 17-A M.R.S. § 255-A(1)(M)
(2015). On appeal, Lyon challenges only his conviction on the
Class B charge alleged in Count 1, arguing that the
conviction should be vacated because the proof at trial
varied from the dates alleged in the indictment, thereby
exposing him to the risk of double jeopardy. We affirm the
[¶2] In February 2014, Lyon was indicted for
three crimes covering three different periods of time: in
Count 1, unlawful sexual contact (Class B), 17-A M.R.S.
§ 255-A(1)(E-1), with an alleged offense date of "
[o]n or about between March 3, 2011 and March 3, 2012" ;
in Count 2, unlawful sexual contact (Class C), id.
§ 255-A(1)(M), with an alleged offense date of "
[o]n or about between March 4, 2012 and March 3, 2013" ;
and in Count 3, unlawful sexual contact (Class C),
id., with an alleged offense date of "
[b]etween March 4, 2013 and August 5, 2013." The same
person is identified as the victim in each count. Lyon
pleaded not guilty to the charges, and a two-day jury trial
was held in October 2014.
[¶3] As an element of Count 1, the State was
required to prove beyond a reasonable doubt that at the time
of the offense, the victim was younger than twelve years old.
The undisputed evidence presented at trial established that
the victim was born on March 30, 2000, and that she therefore
turned twelve on March 30, 2012. At trial, the victim
testified that she was " around" eleven the first
time that Lyon subjected her to sexual contact, which
constituted the basis for the charge in Count 1. Other
evidence would have warranted a finding by the jury that the
in Count 1 occurred no later than August 2010, when the
victim was ten years old.
[¶4] On October 28, 2014, the jury returned
guilty verdicts on all three counts of unlawful sexual
contact. In March 2015, the court sentenced Lyon on Count 1
to a prison term of ten years, with all but eight years
suspended and twelve years of probation. On Counts 2 and 3,
the court imposed fully suspended prison terms of four years,
to be followed by two years of probation. The court ordered
that the three sentences were to be served consecutively.
Lyon timely appealed the judgment of conviction pursuant to
15 M.R.S. § 2115 (2015) and M.R. App. P. 2(b)(2)(A).