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State v. Foster

Supreme Court of Maine

October 18, 2016

STATE OF MAINE
v.
JASON M. FOSTER

          Argued: September 15, 2016

         On the briefs:

          Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant Jason M. Foster

          Stephanie Anderson, District Attorney, and Jennifer F. Ackerman, Dep. Dist. Atty., Prosecutorial District Two, Portland, for appellee State of Maine

         At oral argument:

          Jamesa J. Drake, Esq., for appellant Jason M. Foster

          Jennifer F. Ackerman, Dep. Dist. Atty., for appellee State of Maine

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

          SAUFLEY, C.J.

         [¶l] Jason M. Foster was charged by indictment with eighteen criminal counts based on allegations that he had pretended to be a police officer in order to compel or induce four women who were engaged in prostitution to have sex with him as he demanded. Foster appeals from a judgment of conviction entered by the court (Cumberland County, Warren, /.] after a jury found him guilty of two counts of gross sexual assault (Class B], 17-A M.R.S. § 253(2](B] (2015]; four counts of impersonating a public servant (Class E], 17-A M.R.S. §457(1], (3] (2015]; and two counts of engaging a prostitute (Class E], 17-A M.R.S. §853-B(l](A] (2015], based on his conduct toward three of the four women identified by initials in the indictment. He argues that he was deprived of due process because the indictment and jury verdict form did not adequately distinguish among separate allegations involving each victim. We affirm the judgment.

         I. BACKGROUND

         [¶2] Foster was charged with eighteen crimes involving four victims through an indictment signed on November 7, 2014. For each count, he was charged with a crime alleged to have occurred "between October 9, 2013 and October 9, 2014." Although the indictment did not specify the victims for the counts of impersonating a public servant, the organization of the indictment and the specificity in the jury verdict form make clear which counts are associated with each alleged victim. The indictment charged four counts of gross sexual assault (Counts 1 through 4] and four counts of impersonating a public servant (Counts 5 through 8] with respect to one woman; two counts of engaging a prostitute (Counts 11 and 12] and two counts of impersonating a public servant (Counts 13 and 14] with respect to a second woman; two counts of gross sexual assault (Counts 15 and 16] and two counts of impersonating a public servant (Counts 17 to 18] with respect to a third woman; and single counts of theft by extortion (Class C], 17-A M.R.S. § 355(1], (3] (2015], (Count 9] and impersonating a public servant (Count 10] with respect to a fourth woman.

         [¶3] In April 2015, Foster moved for a bill of particulars regarding the counts charging him with gross sexual assault and impersonating a public servant. He argued that duplicative language in the indictments and the broad date range failed to provide him sufficient notice of the basis for each charge against him, thereby depriving him of the opportunity to prepare a defense, and failed to protect him from double jeopardy. A month later, after further discovery, Foster withdrew his motion for a bill of particulars without prejudice. He did not file another motion for a bill of particulars.

         [¶4] The court held a jury trial on August 18, 19, and 20, 2015. Foster did not request jury instructions explaining the requirement of unanimity as to each specific charged crime. Nor did Foster seek further clarification of the nature of each alleged crime in the jury verdict form. The verdict form identified, for each charged crime, the name of the alleged victim. No further specificity was provided in the form, except to require the jury to ...


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