Argued: September 14, 2016
F. McKee, Esq. (orally), and James A. Billings, Esq., McKee
Billings, LLC, P.A., Augusta, for appellant David Hanscom
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.
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.
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. 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
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.
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."
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,
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 ...