MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 132
Docket: Fra-18-444
Argued: June 12, 2019
Decided: August 13, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM,* JJ.
STATE OF MAINE
v.
ROSS S. ADAMS
HJELM, J.
[¶1] In 2018, Ross S. Adams was convicted of unlawful sexual contact
(Class A), 17-A M.R.S. § 255-A(1)(F-1) (2018), in the Unified Criminal Docket
(Franklin County, Mullen, J.) after a jury trial. During the State’s direct
examination of the victim at the trial, the court admitted in evidence as past
recollection recorded, see M.R. Evid. 803(5), a video recording of a forensic
interview that had been conducted of the victim shortly after the crime
occurred in 2014, when she was seven years old. On appeal, Adams asserts that
the court’s evidentiary ruling was erroneous because the State had not
established the proper foundation required by that exception to the hearsay
*
Although not present at oral argument, Justice Hjelm participated in the development of this
opinion. See M.R. App. P. 12(a)(2).
2
rule and because the admission of the video violated his constitutional right to
confront the witness, see U.S. Const. amend VI.1 We affirm the judgment.
I. BACKGROUND
[¶2] We draw the following account of this case from the evidence as
seen in the light most favorable to the State, see State v. Pelletier, 2019 ME 112,
¶ 2, --- A.3d ---, and from the procedural record.
[¶3] In the fall of 2013, the victim was six years old and lived in
Massachusetts with her mother. The mother became romantically involved
with Adams, and shortly after that relationship began, Adams moved into the
mother and victim’s home and, around the same time, started sexually abusing
the victim.
[¶4] In July of 2014, Adams, the mother, and the victim moved to
Farmington. From that time until October 9, 2014, Adams repeatedly sexually
assaulted the victim, sometimes inside the house and other times outside, by
touching her genitals and digitally penetrating her.
1Adams also contends that the evidence is insufficient to support the verdict. For reasons that
are evident in this opinion, we are not persuaded by that contention and do not discuss it further.
See State v. Moores, 2006 ME 139, ¶ 7, 910 A.2d 373 (stating the standard of review on a challenge to
the sufficiency of the evidence supporting a guilty verdict); see also State v. Hodgdon, 2017 ME 122,
¶ 21, 164 A.3d 959 (“A jury is permitted to draw all reasonable inferences from the evidence, and
decide the weight to be given to the evidence and the credibility to be afforded to the witnesses.”
(quotation marks omitted)).
3
[¶5] On October 10, 2014, the victim travelled to Florida to visit her
father. A few days later, she disclosed the abuse to her father. He contacted
Florida’s child services agency, which opened an investigation that led to a
forensic interview conducted of the victim on October 20, 2014. The victim
remained with her father in Florida and was still living with him when the trial
was held in 2018.
[¶6] In November of 2014, Adams was charged with one count of
unlawful sexual contact of a child under the age of twelve, with penetration,
17-A M.R.S. § 255-A(1)(F-1). After he was indicted for that charge several
months later, he pleaded not guilty.
[¶7] The court conducted a two-day jury trial in June of 2018.2 On the
first day of the trial, the State presented the testimony of the victim’s mother
and the victim, who then was eleven years old. During the State’s examination
of the victim, she testified that Adams had abused her a “lot” of times and that
the incidents occurred both inside and outside the house where they were
living. The victim recalled one specific incident that had occurred outside the
house; she testified to conduct by Adams that would satisfy the elements of the
charge, and she also described some of the surrounding circumstances. When
2 The case remained pending for more than three years due to multiple continuances.
4
asked about incidents of abuse that had occurred inside the house, the victim
testified that there had been more than one such incident, that she thought that
one had occurred in a bedroom, but that she did not have a specific memory of
a particular incident. When the State inquired about the forensic interview, the
victim testified that she remembered talking to the interviewer in Florida, that
she had a clear memory of the abuse then, and that she had told the interviewer
the truth.
[¶8] Based on that testimony, the State offered in evidence the video
recording of the forensic interview.3 The court viewed the recording out of the
jury’s presence, heard argument from the parties, and, over Adams’s objection,
determined that the State had developed a proper foundation for the portions
of the recording relating to incidents of abuse inside the house to be admitted
as past recollection recorded. See M.R. Evid. 803(5).
[¶9] Given that ruling and after carefully preserving his objection to it,
Adams agreed that most of the remaining portions of the recording could be
3On the first day of the trial, before the jury was sworn, Adams sought permission from the court
to use portions of the recording during his cross-examination of the victim. The State asserted that,
if Adams did so, the rule of completeness would allow the whole recording to be published to the
jury. See M.R. Evid. 106 (“If a party utilizes in court all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be considered at the time.”). The court deferred ruling
on the issue until later in the trial but, given the developments at trial that are the subject of this
appeal, did not need to address the issue.
5
admitted in evidence. This approach allowed Adams to cross-examine the
victim about potential inconsistencies between her testimony and her
statements on the recording. The recording was played for the jury while the
victim, by agreement of the parties, remained outside the courtroom. In the
recording, the then-seven-year-old victim told the interviewer details about the
abuse that had taken place inside the house—what Adams did to her, where it
happened, where her mother was at the time, and how it made her feel. The
victim told the interviewer that the last time Adams had abused her was the
day before she left Maine to visit her father in Florida.
[¶10] After the video was played for the jury, the victim resumed her
testimony and was cross-examined by Adams, during which he replayed parts
of the recording to set up some of his questions. While testifying, the victim
could not remember saying certain things to the forensic interviewer four years
earlier, and she was unable to recall details of the incidents of abuse about
which Adams was questioning her.
[¶11] The jury found Adams guilty of the single count of unlawful sexual
contact. The court later denied Adams’s motion for a new trial, see M.R.U.
Crim. P. 33, or judgment of acquittal, see M.R.U. Crim. P. 29(b), and sentenced
6
Adams to a seventeen-year prison term with all but ten years suspended and
ten years’ probation. This appeal followed. See 15 M.R.S. § 2115 (2018).
II. DISCUSSION
[¶12] Adams asserts that, for two reasons, the court erred by admitting
evidence of the victim’s out-of-court statements contained in the recording.
First, Adams argues that the State failed to develop a proper foundation for past
recollection recorded as required by Maine Rule of Evidence 803(5) and our
interpretive caselaw.4 Second, Adams contends that even if the recording were
admissible pursuant to the Maine Rules of Evidence, its admission violated his
Sixth Amendment right to confront a witness against him because, given the
victim’s limited memory at trial, he was unable to “reasonably cross-examine”
her about her recorded statements. See U.S. Const. amend. VI. We address these
contentions in turn.5
4 Adams’s argument regarding the foundational elements of Rule 803(5) is based on the rule as
it appeared before the Maine Rules of Evidence were restyled in 2015. Because the trial was held
after the Rules were restyled and, in any event, the restyling was not intended to make any
substantive changes to the Rules, see M.R. Evid. Advisory Committee’s Note to 2015 amend., we
address his argument as framed by the restyled Rule 803(5).
5After the court ruled, over Adams’s objection, that portions of the recording would be admitted
in evidence, Adams agreed that much of the remainder of the recording could be admitted as well.
We address only the admissibility of the statements to which Adams objected.
7
A. Maine Rule of Evidence 803(5)
[¶13] “We review the court’s foundational findings or implicit findings
to support admissibility of evidence for clear error, and we will uphold those
findings unless no competent evidence supports the findings.” State v.
Cruthirds, 2014 ME 86, ¶ 16, 96 A.3d 80 (quotation marks omitted). The court’s
ultimate determination that evidence is “admissible as a recorded recollection
is deferentially reviewed for an abuse of its considerable discretion.” Id. ¶ 17
(quotation marks omitted). Here, the court did not make explicit foundational
findings and was not asked to do so, although the court’s ruling followed an
extended colloquy with counsel during which the applicable legal principles
were explicitly articulated by both the court and the parties.
[¶14] Pursuant to the recorded recollection exception to the hearsay
rule, evidence is not excluded by the general rule barring the admission of
hearsay when the out-of-court statement satisfies the following requirements:
(1) it relates to a matter the witness once knew about but cannot recall well
enough at trial to testify fully and accurately; (2) it was made or adopted by the
witness when the matter was fresh in the witness’s memory; and (3) it is an
accurate record of the witness’s past knowledge.6 See M.R. Evid. 803(5); see
The recorded recollection exception to the hearsay rule also provides that “[i]f admitted, the
6
record may be read into evidence but may be received as an exhibit only if offered by an adverse
8
also State v. Gorman, 2004 ME 90, ¶ 27, 854 A.2d 1164. These foundational
criteria may be established “independent of the declarant’s testimony as to
present memory.” Gorman, 2004 ME 90, ¶ 29, 854 A.2d 1164. When the
witness is unable or unwilling to testify from present memory, “it is within the
discretion of the trial court to determine whether the foundational
requirements of Rule 803(5) have been satisfied on a case-by-case basis,
whether by direct or circumstantial evidence.” Id. ¶ 28 (quotation marks
omitted).
[¶15] The first foundational element as stated above actually has two
components that focus on different timeframes: the predicate evidence must
show that, at the time the declarant made the out-of-court statement, she knew
about the subject of the statement, and it must show that, at the time the
party.” M.R. Evid. 803(5). Because the out-of-court statements were contained in a video recording,
the appropriate way for the evidence to be presented to the jury was for the recording to be played
for the jury, which is what happened here. See M.R. Evid. 1002 (“An original writing, recording, or
photograph is required in order to prove its content unless these rules or a statute provides
otherwise.”). Once the court ruled that many of the victim’s hearsay statements were admissible,
Adams did not object to the State playing the video recording for the jury, as opposed to a transcript
of the video being “read into evidence,” and Adams confirmed at oral argument that, compared to the
use of a transcript, using the recording at trial had strategic benefits for him.
We also note that, pursuant to that aspect of Rule 803(5), the court correctly directed that, even
though the recording was admitted in evidence, it was to be played for the jury in the courtroom and
would not accompany the jury into the jury room during deliberations. See United States v. Dazey,
403 F.3d 1147, 1168 (10th Cir. 2005) (stating that the “rationale . . . for requiring that [recorded
hearsay statements] be read aloud into the record rather than received into evidence is so that the
‘past recollection recorded’ evidence is treated on par with the oral testimony presented at trial.”).
9
declarant testifies at trial, her recollection has failed to the point where she is
unable to testify about the matter fully and completely. See M.R.
Evid. 803(5)(A). Here, the court did not err by implicitly finding that both of
these circumstances existed. In the video, the victim, who then was seven years
old, told the interviewer about her life in Maine, about the acts that Adams
committed against her while she was living there, and specifically and in detail
about the assaults that took place inside the house. Further, at trial the victim
testified that, although Adams had sexually assaulted her numerous times
inside the house, she generally could not remember where the abuse had
occurred and did not have a clear or specific memory of the other aspects of
that abuse. The record supports the court’s implicit foundational findings that
the victim’s recorded descriptions of Adams’s assaults against her were of
matters she once knew about but, at trial, could not recall well enough to testify
fully and accurately.
[¶16] The court was also entitled to find that the State had presented
evidence to satisfy the second criterion for admission of the recording, namely,
that the victim had made the statements when her memory of the abuse was
fresh. See M.R. Evid. 803(5)(B). As described in the interview, the sexual
assaults occurred from July to October of 2014—a span of approximately three
10
months ending eleven days before the victim was interviewed. As we note
above, in her hearsay statements the victim demonstrated a strong memory of
Adams’s conduct committed against her inside the house. And during the
State’s direct examination, the victim testified that when she talked to the
interviewer, her memory of the abuse was better than it was at the time of the
trial, and she agreed that, at the time of the interview, she had “a clear memory
of what had happened in Maine.” Consequently, the trial court did not clearly
err in its determination that when the victim was interviewed, her memory of
Adams’s assaults against her in the house was fresh. See Gorman, 2004 ME 90,
¶ 33, 854 A.2d 1164 (concluding that statements made about an event two
months after it occurred were made when the witness’s memory was fresh);
see also United States v. Smith, 197 F.3d 225, 231 (6th Cir. 1999) (stating that
“[s]ome courts have found periods from ten months to three years to be
‘fresh’”).
[¶17] Finally, the trial court was entitled to find that the State had
demonstrated the third condition for the hearsay to be admissible—that the
victim’s statements during the interview accurately reflected her knowledge of
the matter as of the time of the interview. See M.R. Evid. 803(5)(C). This
foundational element is intended, in part, to ensure that the declarant was
11
speaking truthfully when she made the out-of-court statements.7 See Gorman,
2004 ME 90, ¶¶ 36-40, 854 A.2d 1164. In this case, the victim confirmed at trial
that she remembered that she “went and talked to a lady in a room, and [the
lady] asked [the victim] the kind of questions” the State was asking her at trial
and that she had told the interviewer the truth. At the beginning of the
interview, which was well-structured and featured nonleading questions, in
several different ways the interviewer discussed with the victim what “the
truth” is, ensured that the victim understood that they “were going to talk about
things that are true,” and emphasized that they would “talk about only the
truth.” For foundational purposes—leaving the ultimate question of credibility
for the jury to decide—these statements and the victim’s responses, which
indicated her understanding of what it means to tell the truth, along with other
7 An additional purpose of this criterion is to establish the authenticity of the record presented.
See State v. Gorman, 2004 ME 90, ¶¶ 36, 40, 854 A.2d 1164 (affirming a court’s determination that a
transcript and audio recording of prior grand jury testimony had sufficient indicia of accuracy after
a court reporter testified and “identified [the declarant] as the person who gave the testimony, and
established that the transcript and the audiotape accurately recorded her testimony”). Adams
asserts on appeal that the State failed to provide any evidence that the video recording used at trial
showed the same interview that the victim described in her testimony. Adams did not raise this issue
during the trial and therefore has not preserved it for appellate review. See State v. Jones, 2019 ME
33, ¶ 23, 203 A.3d 816. Beyond that, on this record the authenticity of the recording is not called into
question. For example, before the trial began, Adams received permission from the court to be able
to use the recording during his cross-examination of the victim, and when he played a portion of the
recording during his cross-examination of the victim, he referred to it as “part of the recording of the
interview that took place in Florida on October 20, 2014.” Furthermore, the video recording itself is
time-stamped as October 20, 2014, which is within the period when the father testified that he took
the victim to the forensic interview after learning about the abuse from her a week earlier. And there
is no indication in the record that there was more than one interview of the victim.
12
indicia of truthfulness, constituted a sufficient predicate demonstration that the
victim’s out-of-court statements accurately described the assaults committed
against her by Adams and were worthy of a jury’s consideration. See State v.
Discher, 597 A.2d 1336, 1342 (Me. 1991) (explaining that indicia of reliability
include the likelihood that the witness would have lied during the earlier
created record, or the witness’s current motivation to forget earlier made
statements that could now prove incriminating).
[¶18] In sum, acting in its gatekeeping role, the court did not err by
determining that the State had satisfied the foundational elements of the
recorded recollection exception to the hearsay rule.
B. Right of Confrontation
[¶19] Adams also contends that the victim’s memory of the forensic
interview and the incidents of abuse she described there was so limited at trial
that he was unable to “reasonably cross-examine” her, and thus the admission
of the recorded interview violated his constitutional right to confront a witness
brought against him. See U.S. Const. amend. VI. “We review application of the
Confrontation Clause de novo.” State v. Gagne, 2017 ME 63, ¶ 32, 159 A.3d 316
(quotation marks omitted).
13
[¶20] The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. Pursuant to this constitutional
protection, if a witness does not testify at trial, a court may admit that witness’s
testimonial out-of-court statements “only where the defendant has had prior
opportunity to cross-examine” the declarant. Gorman, 2004 ME 90, ¶ 50, 854
A.2d 1164 (quotation marks omitted).8 For that reason, statements that are
admissible pursuant to the rules of evidence—such as the recorded recollection
exception at issue here—“may be inadmissible when tested against the
Confrontation Clause.” Id. ¶ 46.
[¶21] When the declarant is available for cross-examination at trial,
however, a defendant’s Sixth Amendment right to confront the witness is not
compromised, regardless of the strength of the declarant’s memory. Gagne,
2017 ME 63, ¶ 35, 159 A.3d 316; Gorman, 2004 ME 90, ¶¶ 52-55, 854 A.2d 1164.
When the declarant is available for cross-examination, “the
Confrontation Clause includes no guarantee that every witness
called by the prosecution will refrain from giving testimony that is
8 For purposes of the Confrontation Clause, testimonial statements are out-of-court statements
made primarily “to establish or prove past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822 (2006); see also State v. Metzger, 2010 ME 67, ¶ 15, 999 A.2d
947. The victim’s out-of-court statements here were in response to questions posed during a forensic
interview and are clearly testimonial. See State v. Jones, 2018 ME 17, ¶ 9, 178 A.3d 481; see also
Michigan v. Bryant, 562 U.S. 344, 355-71 (2011) (discussing the primary purpose determination).
The State does not contend otherwise.
14
marred by forgetfulness, confusion, or evasion.” United States v.
Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). The
Clause guarantees “an opportunity for effective cross-examination”
but does not guarantee that the cross-examined witness will have
full memory. Id. at 559-60, 108 S.Ct. 838. “A witness is not
constitutionally unavailable for purposes of Confrontation Clause
analysis when a witness who appears and testifies is impaired.”
State v. Gorman, 2004 ME 90, ¶ 52, 854 A.2d 1164. “‘When the
declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior testimonial
statements.’” Id. ¶ 55 (quoting Crawford [v. Washington, 541 U.S.
36], 59 n.9, 124 S.Ct. 1354 [(2004)]).
Gagne, 2017 ME 63, ¶ 33, 159 A.3d 316 (alterations omitted).
[¶22] That is the case here. The victim testified at trial and was available
for Adams to cross-examine her about the statements she had made during the
interview. Therefore, despite the victim’s imperfect memory at trial, Adams’s
rights under the Confrontation Clause were not offended by the admission of
the victim’s prior testimonial statements made during the recorded forensic
interview.9
9 Adams also asserts that because he was unable to cross-examine the interviewer in the video
about her methods, his rights under the Confrontation Clause were violated. Adams failed to raise
this particular argument to the trial court and thus has not preserved the issue for review. See State
v. Ngo, 2007 ME 2, ¶ 7, 912 A.2d 1224. Nonetheless, Adams’s contention is unavailing. The
Confrontation Clause “bars admission of testimonial statements of a witness who did not appear at
trial.” Davis, 547 U.S. at 821 (quotation marks omitted). While the recording contains statements
made by the interviewer, who was not called to testify at trial, the interviewer’s statements were not
testimonial but merely provided a context to understand the victim’s statements. See King v.
Kentucky, 554 S.W.3d 343, 362-63 (Ky. 2018) (holding that the interviewer’s statements, made
during a recorded forensic interview of an abused child, were nontestimonial because they were
meant to “encourage [the victim] to give more detail without asserting independent knowledge”);
Arizona v. Martin, 235 P.3d 1045, 1049-50 (Ariz. Ct. App. 2010) (holding that the questions of an
15
III. CONCLUSION
[¶23] The court did not err when it admitted in evidence as past
recollection recorded the video recording in which the victim described
Adams’s assaults of her inside the home. Furthermore, Adams’s constitutional
right of confrontation was not violated by the admission of that evidence
because he was provided the opportunity to cross-examine the victim about her
out-of-court statements.
The entry is:
Judgment affirmed.
John Scott Webb, Esq. (orally), and Katherine M. Campbell, Esq., Saco, for
appellant Ross S. Adams
James A. Andrews, Dep. Dist. Atty. (orally), Franklin County District Attorney
Office, Farmington, for appellee State of Maine
Franklin County Unified Criminal Docket docket number CR-2014-1059
FOR CLERK REFERENCE ONLY
interviewer of a child sexual abuse victim, heard on a video recording, were not testimonial).
Adams’s Sixth Amendment rights were not implicated by the absence of the interviewer at trial.