State of Maine v. David Hanscom

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 184
Docket: Oxf-15-622
Argued: September 14, 2016
Decided: December 22, 2016

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

STATE OF MAINE

v.

DAVID HANSCOM

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
2

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 Hanscom’s 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.

1 The initials we use in this opinion do not match the victims’ names.
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[¶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 sister’s 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 didn’t always happen.”

[¶5] At the close of the State’s case-in-chief, the court granted

Hanscom’s 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 Maine’s pattern instruction:
4

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 that at least one specific incident of
the crime is proven to support a conviction.

See Alexander, Maine Jury Instruction Manual § 6-65 at 6-131 (2016 ed.). The

court declined to give the instruction, stating, “The problem is only one

allegation to each victim and not multiple allegations as to each victim so . . . I

think it would be a little more confusing, and I’m not sure it would be very

enlightening to the jury.”

[¶7] The jury found Hanscom guilty of both counts of unlawful sexual

contact. In December 2015, the court imposed concurrent sentences of three

years’ imprisonment with all but fifteen months suspended and eight years of

probation. Hanscom appealed. 15 M.R.S. § 2115 (2015).

II. DISCUSSION

[¶8] Hanscom argues that the court erred by rejecting his request for

the specific unanimity instruction. He also contends that in its closing

argument, the State made improper statements that, even in the absence of an

objection, warrant a new trial. We consider these issues in turn, agreeing with
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Hanscom’s first contention but also addressing the second to avoid recurrence

of improper prosecutorial comments at the retrial.

A. Requested Jury Instruction

[¶9] Testifying at trial, both victims described multiple incidents when

Hanscom had sexual contact with each of them. C.D. testified that the

incidents occurred “every day we slept there,” and A.B. told the jury that it

happened “more than once.” According to the girls’ mother, they visited the

Hanscoms a number of times each year, including Christmas, long weekends,

and during summers. Although A.B. and C.D. testified that Hanscom engaged

in this conduct against each of them more than once, Hanscom was charged

with only one criminal act against each girl. Because the State presented

evidence of multiple incidents committed against each named victim,

Hanscom requested that the court instruct the jury on specific unanimity—in

effect, that the jury could find him guilty of a particular count only if the jurors

agreed unanimously, beyond a reasonable doubt, that “at least one specific

incident” occurred; but that a guilty verdict could not be predicated on a

finding by some jurors that Hanscom committed the crime at one particular

time and a finding by other jurors that he committed the crime at a different

time. The court did not give this instruction to the jury, reasoning that
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because there was only one count for each victim, the instruction would be

confusing.

[¶10] “We review jury instructions as a whole for prejudicial error, and

to ensure that they informed the jury correctly and fairly in all necessary

respects of the governing law.” State v. Tucker, 2015 ME 68, ¶ 11, 117 A.3d

595 (quotation marks omitted). Where, as here, the appellant has preserved

the issue for appeal by requesting that the court give the instruction at issue,

see Clewley v. Whitney, 2002 ME 61, ¶ 9, 794 A.2d 87, we will vacate the

judgment if the appellant demonstrates that the requested jury instruction

(1) stated the law correctly; (2) was generated by the evidence;
(3) was not misleading or confusing; and (4) was not sufficiently
covered in the instructions the court gave. In addition, the court’s
refusal to give the requested instruction must have been
prejudicial to the requesting party.

State v. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278 (citation omitted). Here,

the record demonstrates that the court committed prejudicial error by not

including the requested instruction in its charge to the jury.

[¶11] The specific unanimity instruction proposed by Hanscom

correctly states the law in a way that is not misleading or confusing, because

in order for the jury to find Hanscom guilty of a particular charge, the

instruction would properly require a unanimous agreement among the jurors
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that a single incident of unlawful sexual contact occurred. See State v. Fortune,

2011 ME 125, ¶ 31, 34 A.3d 1115 (“When separate, . . . similar incidents such

as thefts or drug transactions are the evidence supporting a single charge, the

jury must unanimously find that one specific incident occurred . . . .”

(Emphasis added)). This stands in contrast to other circumstances where the

specific unanimity instruction is not warranted: for example, where a crime

can be committed by alternative means, see State v. Nguyen, 2010 ME 14, ¶ 15,

989 A.2d 712; or where the State alleges that there was more than one victim

of a single crime, see Fortune, 2011 ME 125, ¶ 33, 34 A.3d 1115.

[¶12] Here, the problem arises—and the specific unanimity instruction

was necessary—because the State presented evidence that Hanscom

committed the same crime against each victim on different occasions, and any

one of those occasions could have led to a guilty verdict on that particular

charge.2 In such circumstances, the specific unanimity instruction prevents

jury confusion and serves to ensure that a guilty verdict is based on the jury’s

2 In addition to the incidents in the bedroom as described by the girls, A.B. testified that during a

visit to Hanscom’s residence, Hanscom put his hand under her clothing and touched her “butt”
while she sat on Hanscom’s lap in a chair in the den and played a computer game. We need not
decide whether A.B.’s description of where Hanscom touched her would be sufficient to support a
conviction for unlawful sexual contact, see 17-A M.R.S. § 251(1)(D) (2015) (defining “sexual
contact” as “any touching of the genitals or anus, directly or through clothing”), because the specific
unanimity instruction became necessary based on evidence that he committed that crime against
her more than once in the bedroom where he allegedly touched her genitals, and without regard to
the alleged incident in the den.
8

unanimous conclusion that the State proved a single criminal episode. Id.

This would not—as the State claims—have required proof that the crime

occurred on a particular date. Rather, the specific unanimity instruction

merely requires the State to persuade the jury beyond a reasonable doubt that

the crime at issue was committed on some particular occasion.

[¶13] Further, the requirement of specific unanimity was not

sufficiently addressed in the other instructions given by the court to the jury.

See id. In relevant part, the court instructed the jury:

Count II, as to the charge of unlawful sexual contact on or about
July 1, 2012 involving [A.B.] and you make the determination of
whether you find the defendant guilty or not guilty and so you
indicate. And then as to Count III, you make the same – you go
through the same assessment as to the charge of – involving [C.D.]
and you make a determination whether the defendant is guilty or
not guilty.

Your verdict must be unanimous. All 12 of the jurors who
deliberate must agree in order to reach a verdict.

The court also instructed the jury, “There [are] two charges. You [have] the

verdict form. Each one is addressed separately. The burden is on the State to

prove the element of each of those charges.” Thus, although the court drew a

clear distinction between the two counts, its instructions fell short of

distinguishing among the multiple factual bases presented by the State to

support each count.
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[¶14] Overall, in the circumstances presented here, the omission of the

specific unanimity instruction was prejudicial to Hanscom. Based on the

State’s evidence, the jury was entitled to reasonably conclude that Hanscom

committed the crime of unlawful sexual contact more than once against each

girl. The jury was not instructed, however, about the requirement of

unanimity as it applies to a single incident, and the instructions therefore left

open the prospect that the jury would find Hanscom guilty based on verdicts

that were less than unanimous. As a result, the error affecting the instructions

was prejudicial.

[¶15] The State argues that evidence of multiple criminal episodes

committed against each named victim did not generate the need for the court

to instruct the jury on specific unanimity, because evidence of those additional

acts was admissible, not as an independent basis for criminal liability, but as

evidence of prior bad acts. See M.R. Evid. 404(b); Steadman v. Pagels, 2015 ME

122, ¶ 18, 125 A.3d 713. The court rejected Hanscom’s proposed instruction,

however, for a very different reason, namely, its conclusion that the

instruction would be confusing. The record before us does not suggest that

the State presented a Rule 404(b) analysis to the court.3 Consequently, the

3 It is apparent that the parties did not create a full record of the discussion regarding the

specific unanimity instruction. The trial transcript contains a sidebar colloquy among the court and
10

court was not alerted that the State was calling for it to engage in the sensitive

and discretionary balancing process that often accompanies an offer of

evidence of prior bad acts, see State v. Wyman, 2015 ME 2, ¶ 21, 107 A.3d

1134, in order to determine if that evidence could be properly used for that

purpose, see Steadman, 2015 ME 122, ¶ 18, 125 A.3d 713. Because the State

did not call on the court to pass on the theory of admissibility it proposes

here, we will not entertain the State’s contention on a post hoc basis.

[¶16] The Maine Constitution provides that “unanimity, in indictments

and convictions, shall be held indispensable.” Me. Const. art. I, § 7; see also

State v. Elliott, 2010 ME 3, ¶ 23, 987 A.2d 513. As we have previously stated,

“[o]n request, the jury should be instructed on [specific unanimity], if the

evidence offered in support of one charge includes more than one incident of

the charged offense.” Fortune, 2011 ME 125, ¶ 31, 34 A.3d 1115. The court

denied Hanscom’s request for the instruction, and the error was prejudicial

because on this record, the instructions created the prospect that the jury

found Hanscom guilty of each charge with less than unanimity.

counsel where the proposed instruction was discussed and which refers to a chambers
conversation that is not included in the record. Nothing in the recorded sidebar conference
suggests that the State made an argument based on Rule 404(b), and without more we will not
speculate about the scope of the unrecorded discussion.
 11

B. Prosecutorial Misconduct

[¶17] Hanscom also contends that during closing arguments, the

prosecutor made statements that constituted prosecutorial misconduct.

Although we vacate the conviction on other grounds, we address—again4—

the issue of prosecutorial misconduct committed in the State’s closing

argument.

[¶18] The role of a prosecutor in the courtroom is unique, serving as a

“minister of justice” who is obligated “to see that the defendant is accorded

procedural justice and that guilt is decided upon the basis of sufficient

evidence.” M.R. Prof. Conduct 3.8 cmt. (1); see also State v. Robinson, 2016 ME

24, ¶ 23, 134 A.3d 828. Prosecutors must “walk a careful line” to avoid

overreaching, and “[a]lthough permitted to strike hard blows, a prosecutor

may not strike foul ones.” State v. Dolloff, 2012 ME 130, ¶ 41, 58 A.3d 1032

(quotation marks omitted).

[¶19] Hanscom correctly points to multiple instances of misconduct by

the prosecutor during her closing argument. For example, the prosecutor

made references to factual information extrinsic to the record:

4 See, e.g., State v. Madeiros, 2016 ME 155, ¶ 19, --- A.3d ---; State v. McBreairty, 2016 ME 61,

¶ 24, 137 A.3d 1012; State v. Robinson, 2016 ME 24, ¶ 28, 134 A.3d 828; State v. Fahnley, 2015 ME
82, ¶ 34, 119 A.3d 727.
12

And, folks, anyone who reads the newspaper or watches the TV
news knows that men accused of abusing children are often
among the most respected members of the community. This is
how they’re able to get away with it for years. I mean, teachers,
coach[es], leaders of youth organizations, such as, Boy Scouts and,
sadly, even clergy members are found to have committed acts
such as these.

Violating the principle that the State’s presentation to the jury “must be

strictly confined to the domain of facts in evidence,” the prosecutor

impermissibly referenced news events about child abuse and imputed the

criminal acts of others to Hanscom. Robinson, 2016 ME 24, ¶ 28, 134 A.3d 828

(quotation marks omitted).

[¶20] In addition, the prosecutor vouched for the credibility of the two

child witnesses during closing arguments, stating: “I would submit the most

important testimony that you heard yesterday came from [A.B. and

C.D.]. . . They were specific, they were detailed, and I would submit to you

they were genuine in their testimony.” A lawyer should not “state a personal

opinion as to . . . the credibility of a witness.” State v. Hassan, 2013 ME 98

¶ 33, 82 A.3d 86 (citing M.R. Prof. Conduct 3.4(e)). A prosecutor may properly

suggest to the jury ways to analyze the credibility of witnesses when those

arguments are “fairly based on facts in evidence.” See Hassan, 2013 ME 98,

¶ 33, 82 A.3d 86 (quotation marks omitted). It is improper, however, for a
 13

prosecutor to vouch for a witness by “impart[ing] her personal belief in a

witness’s veracity or impl[ying] that the jury should credit the prosecution’s

evidence simply because the government can be trusted.” State v. Williams,

2012 ME 63, ¶ 46, 52 A.3d 911 (quotation marks omitted). Here, the

prosecutor crossed that line.

[¶21] Because we vacate the judgment on other grounds, we need not

determine whether these and other comments made by the State to the jury

would require a new trial, even though the issue was not preserved below.

See Dolloff, 2012 ME 130, ¶¶ 35-38, 58 A.3d 1032 (discussing the standard of

review for improper closing arguments by the State in the absence of an

objection at trial). We nonetheless address the issue because of its recurrence

in cases presented on appeal and in an effort to prevent it from occurring

again on retrial.

The entry is:

Judgment vacated. Remanded for a new trial.

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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. O’Connor, Asst. Dist. Atty., Office of the District
Attorney, South Paris, for appellee State of Maine

Oxford County Superior Court docket number CR-2014-466
FOR CLERK REFERENCE ONLY