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State v. Hanscom

Supreme Court of Maine

December 22, 2016

STATE OF MAINE
v.
DAVID HANSCOM

          Argued: September 14, 2016

         Reporter of Decisions

          Walter F. McKee, Esq. (orally), and James A. Billings, Esq., McKee Billings, LLC, P.A., Augusta, for appellant David Hanscom

          Andrew S. Robinson, District Attorney, Alexandra W. Winter, Asst. Dist. Atty. (orally), and Joseph M. OConnor, Asst. Dist. Atty., Office of the District Attorney, South Paris, for appellee State of Maine

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

          HJELM J.

         [¶1] David Hanscom appeals from a judgment of conviction for two counts of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2015), entered in the trial court (Oxford County, Clifford, J.) after a jury trial. He asserts that the court committed prejudicial error by declining to instruct the jury on specific unanimity and that during closing arguments, the State engaged in prosecutorial misconduct that constituted obvious error. Because the instructions to the jury were erroneous and the error was prejudicial to Hanscom, we vacate the judgment and remand for a new trial.

         I. BACKGROUND

         [¶2] In October 2014, Hanscom was indicted for three counts of unlawful sexual contact involving two children when they were both younger than twelve years old. The named victims are twin sisters, A.B. and C.D.[1] In Count 1, Hanscom was charged with committing unlawful sexual contact with penetration (Class A) against A.B., see 17-A M.R.S. § 255-A(1)(F-1) (2015), on or about December 1, 2010. A.B. and C.D. are the named victims in Counts 2 and 3, respectively, which alleged unlawful sexual contact without penetration, see 17-A M.R.S. § 255-A(1)(E-1), on or about July 1, 2012. Hanscom entered pleas of not guilty to all charges, and the court held a two-day jury trial in September 2015.

         [¶3] The trial record, viewed in the light most favorable to the State, supports the following facts. See State v. Haag, 2012 ME 94, ¶ 2, 48 A.3d 207. A.B. and C.D. are the biological granddaughters of Hanscoms wife, who married Hanscom in 1998. A.B. and C.D. visited Hanscom and his wife regularly at the Hanscom residence in Mason Township, including every Christmas, during the summers, and on occasional long weekends and spring breaks. One such visit was during the summer of 2012. During these visits, A.B. and C.D. stayed in an upstairs bedroom down the hall from the bedroom Hanscom shared with his wife.

         [¶4] According to C.D., when she visited Hanscom and her grandmother, around midnight Hanscom frequently entered the bedroom she and her sister used, pushed aside her blanket, nightgown, and underwear, and touched her genitals with his fingers for several minutes. Hanscom would then go to her sisters bed and touch her in the same way. C.D. testified that this occurred "like every day we slept there" and that it always happened the same way. According to A.B., Hanscom would enter the bedroom at 4:00 a.m., sit down on the edge of her bed, move the covers, lift her nightgown and underwear, and touch her genitals with his fingers. She also testified that Hanscom sometimes touched C.D. in the same way. A.B. stated that the contact occurred "more than once but it didnt always happen."

         [¶5] At the close of the States case-in-chief, the court granted Hanscoms motion for judgment of acquittal on Count 1 because of insufficient evidence of penetration. See M.R.U. Crim. P. 29(a). This left Counts 2 and 3, each of which alleged a single criminal act of unlawful sexual contact committed against one of the two girls on or about July 1, 2012.

         [¶6] At the close of the evidence, Hanscom requested the court to instruct the jury on specific unanimity using the following instruction modeled on Maines pattern instruction:

In order to convict the defendant, you must all agree, beyond a reasonable doubt, that the defendant committed the crime of unlawful sexual conduct on at least one specific occasion. It is not enough if some of you find that the crime is proven only on one date, and others find that the crime is proven only on a different date. All of you must agree ...

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