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State v. Olah

Supreme Court of Maine

April 26, 2018

STATE OF MAINE
v.
GREGORY S. OLAH

          Argued: September 14, 2017

          Aroostook County Superior Court docket number CR-2014-437

          Hunter J. Tzovarras, Esq. (orally), Bangor, for appellant Gregory S. Olah

          Todd R. Collins, District Attorney, and Carrie L. Linthicum, Dep. Dist. Atty. (orally), Prosecutorial District 8, Presque Isle, for appellee State of Maine

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

          SAUFLEY, C.J.

         [¶1] 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), [1] and unlawful sexual contact (Class C), 17-A M.R.S.A. §255(1)(C), (2) (Supp. 2002), [2] 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.

         I. BACKGROUND

         [¶2] 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.

         [¶3] 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).

         [¶4] 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, 2001."[3]

         [¶5] 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 voluntarily.

         [¶6] 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."

         [¶7] 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.[4] See 22 M.R.S. § 1711-C (2017);[5] 34-B M.R.S. § 1207 (2017).[6] 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.

         [¶8] 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.

         [¶9] In November 2016, almost two years after the indictment, [7]the 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 additional evidence.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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 Fund.

         [¶14] Olah timely appealed and applied for review of his sentence. 15 M.R.S. §§ 2115, 2151 (2017); M.R. App. P. 2.[8] The Sentence Review Panel denied Olah leave to appeal from his sentence, see 15 M.R.S. ยง 2152 (2017), and the appeal from the judgment of conviction is now ...


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