MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 23
Docket: Cum-12-223
Argued: January 15, 2014
Decided: February 18, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
STATE OF MAINE
v.
NICHOLAS A. GLADU
MEAD, J.
[¶1] Nicholas A. Gladu appeals from a judgment of conviction entered by
the trial court (Warren, J.) following a jury verdict finding him guilty of
unlawful sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2013);1 sexual
exploitation of a minor (Class A), 17-A M.R.S. § 282(1)(C) (2013); visual sexual
aggression against a child (Class C), 17-A M.R.S. § 256(1)(B) (2013); and
sixty-five counts of possession of sexually explicit material (Class C), 17-A M.R.S.
1
The statute provides, in part:
1. A person is guilty of unlawful sexual contact if the actor intentionally subjects another
person to any sexual contact and:
....
F-1. The other person, not the actor’s spouse, is in fact less than 12 years of age
and the actor is at least 3 years older and the sexual contact includes penetration.
Violation of this paragraph is a Class A crime[.]
17-A M.R.S. § 255-A(1)(F-1) (2013).
2
§ 284(1)(C) (2010)2. Gladu contends that the court erred in denying his motion for
a judgment of acquittal on the charge of unlawful sexual contact because the
photograph relied on by the State to prove the required element of penetration was
insufficient for that purpose. He also contends that the court erred in conducting
voir dire when it asked an edited version of a question he proposed that was
designed to disclose bias toward a defendant who suffers from mental illness. We
take this opportunity to clarify the conduct that the State is required to prove in
order to prove the element of penetration, and affirm the judgment.
I. BACKGROUND
[¶2] When “[v]iewed in the light most favorable to the jury’s verdict, the
record supports the following facts.” State v. Ormsby, 2013 ME 88, ¶ 2,
81 A.3d 336. In October 2010, while packing Gladu’s property after he had moved
out of her apartment, Gladu’s ex-girlfriend and her friend, the victim’s mother,
found a camera memory card in the inside pocket of Gladu’s coat. The two
women found photographs on the card, and discovered that a large number of them
depicted children in sexual situations. They recognized a girl in some of the
photographs as the victim, then four years old. Gladu’s ex-girlfriend identified the
location where the photographs of the victim had been taken as a place where she
2
Title 17-A M.R.S. § 284(1)(C) has since been amended, but not in a way that affects this appeal.
P.L. 2011, ch. 50, § 2 (emergency, effective April 25, 2011) (codified at 17-A M.R.S. § 284(1)(C)
(2013)).
3
had once lived with Gladu. She remembered that while they were living there he
had once babysat the victim alone. She called the police.
[¶3] The grand jury handed down a sixty-eight count indictment to which
Gladu pleaded not guilty and not guilty by reason of insanity. The case went to
trial in March 2012.
[¶4] At trial, the parties stipulated that thirty-five photographs on the
camera card were of the victim at the age of four. One, the photograph at issue in
this appeal, showed at close range an adult finger touching the inner part of the
victim’s labia. An additional photograph showed a man’s erect penis above a pair
of red gym shorts that were partially pulled down; Gladu’s ex-girlfriend testified
that she recognized the shorts as his. Detective Eli Chase of the Portland Police
Department conducted a forensic examination of the SD card and testified that he
found a total of 251 photographs and seven videos that in his opinion constituted
child pornography.
[¶5] At the conclusion of the State’s case-in-chief, Gladu moved for a
judgment of acquittal on the charge of unlawful sexual contact, asserting that the
photograph of an adult finger touching the victim’s labia, acknowledged by the
State to be the only evidence offered to prove the element of penetration required
by the Class A charge, was insufficient for that purpose. The court denied the
4
motion, ruling that “a jury could find penetration based on how far the finger may
be . . . within the vagina.” The jury returned a verdict of guilty on each count.
[¶6] At a sentencing hearing, the court entered judgment and imposed an
aggregate sentence of ten years’ imprisonment on the thirty-nine counts of
possession of sexually explicit material involving children other than the victim,
and a consecutive aggregate sentence on the twenty-nine remaining counts of the
indictment, all involving the victim, of twenty-eight years’ imprisonment, with all
but twenty-two years suspended, and eighteen years of probation. Gladu appealed.
We denied his application to appeal from the sentences imposed.
II. DISCUSSION
A. Motion for Judgment of Acquittal
[¶7] In considering Gladu’s contention that the court erred by denying his
motion for a judgment of acquittal, we “view[] the evidence in the light most
favorable to the State to determine whether the trier of fact rationally could have
found beyond a reasonable doubt every element of the offense charged.” State v.
Severy, 2010 ME 126, ¶ 8, 8 A.3d 715 (alteration and quotation marks omitted).
We construe the statute defining the crime charged de novo. Id.
[¶8] As discussed above, the court denied Gladu’s motion after ruling that
the jury “could find penetration based on how far the finger may be . . . within the
vagina.” The court later instructed the jury that
5
[i]f you conclude the State has proven the charge of unlawful sexual
contact you will then be asked a separate question as to that charge,
whether it also has been proven beyond a reasonable doubt that the
sexual contact in question included any digital penetration however
slight of the vagina.
[¶9] The court’s instruction overstated the State’s burden. “Sexual contact”
is defined as “any touching of the genitals . . . for the purpose of arousing or
gratifying sexual desire.”3 17-A M.R.S. § 251(1)(D) (2013) (emphasis added).
Female genitalia include the labia as well as the vagina. See Webster’s II New
College Dictionary 1240 (2001) (defining “vulva” as “[t]he external female
genitalia, including the labia majora”). Although “penetration” is not defined in
the criminal code, “as a general rule, words and phrases that are not expressly
defined in a statute must be given their plain and natural meaning and should be
construed according to their natural import in common and approved usage.”
Fortin v. Titcomb, 2013 ME 14, ¶ 7, 60 A.3d 765 (alteration and quotation marks
omitted). To “penetrate” means “[t]o enter.” Webster’s II New College
Dictionary 812 (2001).
[¶10] Accordingly, in this case Gladu could be convicted of Class A
unlawful sexual contact if the State proved beyond a reasonable doubt that his
fingertip entered the victim’s genitals, within the folds of the labia or into the
vagina. Viewing the photograph at issue in the light most favorable to the State,
3
The word “vagina” is not used in the criminal code.
6
we conclude that the jury could have rationally made that finding. For that reason,
Gladu’s motion for a judgment of acquittal was properly denied.
B. Voir Dire
[¶11] During jury selection, Gladu requested several voir dire questions
concerning prospective jurors’ views of a mental illness-based defense, including
the following:
Has any member of the panel, either themselves or a close family
member, ever been treated for a mental illness or mental defect? . . . If
yes, please describe.
Was there anything about that experience which would cause you to
potentially be unfair against or for the person who suffered such an
illness and received treatment?
The court (Mulhern, J.) declined to ask the questions as proposed, and
instead asked the pool,
[D]oes any member of the panel have any experience or attitude
toward a mental illness defense that makes you more or less likely to
believe or disbelieve the defense despite the evidence provided in the
case? Any experience . . . or attitude toward a mental illness defense
that makes you more or less likely to believe or disbelieve the defense
despite the evidence provided in the case? And we have no response.
The court advised defense counsel, “I’m not giving the other questions. Some of
them I thought were not appropriate and others were covered by the other voir
dire.” Gladu preserved his objection to the court’s ruling.
7
[¶12] We “review a court’s management of voir dire for an abuse of
discretion.” State v. Nigro, 2011 ME 81, ¶ 14, 24 A.3d 1283. “The purpose of the
voir dire examination is to detect bias and prejudice in prospective jurors, thus
ensuring that a defendant will be tried by as fair and impartial a jury as possible.”
Id. ¶ 15 (quotation marks omitted). Accordingly, “voir dire questioning must be
sufficient to disclose facts that would expose juror bias.” Id.
[¶13] Here, the court did not disregard the area of potential bias that Gladu
wished to explore. Instead, it asked prospective jurors a general question—
whether they had any experience or attitude toward a mental illness defense that
could affect their impartiality—without resorting to the intensely personal question
of whether they or a close family member had actually suffered from a mental
illness and then asking for the details of that experience. The question the court
asked was sufficient to detect bias against a defendant with mental illness. Had a
prospective juror indicated a potential bias, the court could have then conducted
individual voir dire to discern the reason for it. Because no panel member
disclosed a general bias, their personal experience with mental illness was
irrelevant.
The entry is:
Judgment affirmed.
8
On the briefs:
Lisa Chmelecki, Esq., Fairfield & Associates, P.A., Lyman, for
appellant Nicholas Gladu
Stephanie Anderson, District Attorney, and Jennifer F.
Ackerman, Asst. Dist. Atty., Prosecutorial District No. Two,
Portland, for appellee State of Maine
At oral argument:
Lisa Chmelecki, Esq. for appellant Nicholas Gladu
Jennifer Ackerman, Asst. Dist. Atty., for appellee State of
Maine
Cumberland County Unified Criminal Docket docket number CR-2011-928
FOR CLERK REFERENCE ONLY