Argued: September 14, 2017
Aroostook County Superior Court docket number CR-2014-437
J. Tzovarras, Esq. (orally), Bangor, for appellant Gregory S.
R. Collins, District Attorney, and Carrie L. Linthicum, Dep.
Dist. Atty. (orally), Prosecutorial District 8, Presque Isle,
for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Gregory S. Olah appeals from a judgment of conviction of
gross sexual assault of a person under the age of fourteen
(Class A), 17-A M.R.S.A. § 253(1)(B) (Supp. 2002),
unlawful sexual contact (Class C), 17-A M.R.S.A.
§255(1)(C), (2) (Supp. 2002),  entered by the court
(Aroostook County, Stewart, J.) after a jury found
him guilty. He challenges the court's [Hunter,
J.) decision to quash his subpoenas of mental health
records of the alleged victim without first viewing the
records in camera, the court's denial of his
motion to suppress statements made to law enforcement, and
the court's [Stewart, J.) denial of his motion
for a judgment of acquittal. We discern no error in the
court's rulings on either the motion to suppress or the
motion for a judgment of acquittal, but we remand for the
court to examine some or all of the requested mental health
records in camera.
Viewed in the light most favorable to the State, the jury
could rationally have found the following facts beyond a
reasonable doubt. See State v. Cummings, 2017 ME
143, ¶ 3, 166 A.3d 996. In the autumn of 2003,
Olah's friend's six-year-old daughter was sleeping in
her bedroom in Presque Isle. She awoke to find that Olah had
undressed her and was touching her genitals with his mouth.
Later that day, Olah took her to play at a local park. Olah
then took her to another friend's nearby home, where he
bathed her and briefly rubbed a towel between her legs. After
the bath, the two were in the living room when Olah removed
his erect penis from his pants, had the girl come to him,
grabbed her hand, and made her touch his penis.
In early 2014, the girl, who was still a minor, told her
counselor what had happened. The counselor reported the
information to state authorities as a mandatory reporter.
See 22 M.R.S. § 4011-A(1)(A)(22), (2) (2017).
In September 2014, Olah was charged by criminal complaint
with gross sexual assault (Class A), 17-A M.R.S.A. §
253(1)(B), and unlawful sexual contact (Class C), 17-A
M.R.S.A. § 255(1)(C), (2). An indictment for the same
charges was filed that November. The indictment alleged-based
on the available evidence-that Olah had committed the crimes
"[o]n or about between July 1, 2001 and September 30,
In June 2015, Olah moved to suppress incriminating statements
he had made during a police interview. The court [Hunter,
J.) held a hearing and denied the motion to suppress,
determining that Olah had not been in custody when he made
the statements and that he had spoken to the police
Before trial, Olah moved for the production of the
child's mental health records from the Aroostook Mental
Health Center (AMHC) and the child's counselor, who was
an employee of AMHC. He asserted in that motion that the
records were not confidential or privileged because the child
waived any privilege by voluntarily disclosing the contents
of her counseling when she spoke with law enforcement
officers. See M.R. Evid. 510(a) ("A person who
has a privilege under these rules waives the privilege if the
person... while holding the privilege voluntarily discloses
or consents to the disclosure of any significant part of the
privileged matter."). He also asserted that the contents
of the records would likely be admissible for impeachment
purposes. The proposed subpoenas requested "[a]ll
counseling records of [the child] and [the counselor]
involving any discussion of sexual abuse."
The court entered an order on January 27, 2016, in which it
determined that Olah had met the threshold requirements of
relevancy, admissibility, and specificity to authorize the
issuance of subpoenas and directed that subpoenas be served.
See M.R.U. Crim. P. l7A(f). After being served with
a notice to produce records, AMHC and the counselor objected
to the production of documents and moved to quash the
subpoenas, asserting that the documents requested were,
despite the mandatory report of child abuse, confidential by
statute and could not be disclosed even for in
camera review. See 22 M.R.S. § 1711-C
(2017); 34-B M.R.S. § 1207
(2017). Olah argued in opposition that the child
had waived the confidentiality of the records through her own
statements to law enforcement, that Rule l7A(f) allows the
court to require the production of otherwise confidential
material for in camera review and possible
disclosure to the defendant, and that the materials can be
used for impeachment.
The court granted the motion to quash without having viewed
the records in camera. It concluded that the child
had not voluntarily waived confidentiality, either through
her statements to law enforcement or through the mandated
report of her counselor. The court distinguished the
confidential records of the counselor from the child's
statements to law enforcement, which were properly the
subject of discovery and, to the extent appropriate pursuant
to the Rules of Evidence, could be used at trial. It further
stated that it was "not persuaded that its preliminary
conclusion that the Defendant had met his threshold
obligation to demonstrate relevance, admissibility and
specificity necessarily leads to an obligation to produce the
[counseling] records for in camera
review." The court reasoned that Rule 17A anticipates
objections to the subpoena and that the court must then
consider "whether the claimed privilege should be
honored or not." Upon considering that question, the
court quashed the subpoenas as mere "fishing
expeditions, " citing State v. Watson, 1999 ME
41, ¶¶ 6, 7, 726 A.2d 214, and State v.
Dube, 2014 ME 43, ¶¶ 8-10, 87 A.3d 1219.
In November 2016, almost two years after the indictment,
court [Stewart, J.) held a two-day jury trial. The
evidence was conflicting regarding the date when Olah had
been present at the girl's home. At the close of
evidence, Olah moved for a judgment of acquittal on the gross
sexual assault charge because the alleged victim had
testified that her eyes were closed when she felt the mouth
on her genitals, and she therefore could not sufficiently
identify Olah as the person who had committed that crime. The
court denied the motion. Olah did not testify and offered no
In its closing argument, the State argued that the events
probably happened when the alleged victim was six years old
in fall 2003. Olah argued that the indictment's
allegation of events in 2001 could not be proved and that the
discrepancies cast reasonable doubt on whether the events
happened at all.
The court gave its final instructions to the jury, which
returned guilty verdicts on both counts. Olah then moved for
a judgment of acquittal on the ground that the evidence could
not establish the identity of the person who committed the
assault in the bedroom and that the evidence presented and
argued by the State was outside the scope of the indictment,
which prejudiced his ability to prepare a defense.
The court heard arguments on Olah's motion for a judgment
of acquittal on December 2, 2016, and denied the motion with
respect to identification because the girl testified about
identifying features of her assailant, including the
description of his facial hair, that were consistent with
only one person who was in the house at the time-Olah. The
court further concluded that there was sufficient evidence to
support each element of each count. The court also denied the
motion as to the date discrepancy because Olah, without
objecting, used that discrepancy during his closing argument
to try to discredit the State's case and undermine
witness credibility; the date discrepancy did not affect the
statute of limitations or any elements of the crime,
including the element of the age range of the victim; and
there was no demonstration of prejudice.
The court then held a sentencing hearing. On the gross sexual
assault count, the court sentenced Olah to fourteen years in
prison, all but seven years suspended, and six years of
probation with conditions limiting his contact with children.
For the unlawful sexual contact, the court sentenced Olah to
forty-two months of incarceration to be served concurrently
with the sentence for the gross sexual assault. The court
also ordered Olah to pay $50 to the Victims' Compensation
Olah timely appealed and applied for review of his sentence.
15 M.R.S. §§ 2115, 2151 (2017); M.R. App. P.
The Sentence Review Panel denied Olah leave to appeal from
his sentence, see 15 M.R.S. § 2152 (2017), and
the appeal from the judgment of conviction is now ...