MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision: 2020 ME 74
Docket:   Yor-19-215
Argued:   January 9, 2020
Decided:  May 26, 2020

Panel:        MEAD, GORMAN, JABAR, and HUMPHREY, JJ.*



                                         STATE OF MAINE

                                                   v.

                                   NICHOLAS E. WESTGATE


JABAR, J.

         [¶1] Nicholas E. Westgate appeals from a judgment of conviction of five

counts of unlawful sexual touching, (Class B), 17-A M.R.S. § 255-A(1)(E-1)

(2020), and one count of visual sexual aggression against a child (Class C),

17-A M.R.S. § 256(1)(B) (2020), entered after a jury trial. We conclude that

Westgate received a fair trial with properly admitted expert testimony and a

clear guilty verdict. We affirm the judgment.




   *   Although Justice Alexander participated in the appeal, he retired before this opinion was
certified. Chief Justice Saufley also sat at oral argument and participated in the initial conference, but
she resigned before this opinion was certified.
2

                                    I. BACKGROUND

          [¶2] The following facts are drawn from the evidence admitted at trial,

    viewed in the light most favorable to the State. See State v. Graham, 2015 ME

    35, ¶ 2, 113 A.3d 1102.

          [¶3] During the month of June 2009, Westgate committed five separate

    incidents of unlawful sexual contact and one incident of visual sexual

    aggression, all against an eleven-year-old victim.

          [¶4] In 2012, Westgate was charged by indictment with five counts of

    unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1), and one count

    of visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B).

    A.    First Trial

          [¶5]   Following several motions to continue the dates set for jury

    selection and trial, the court (York County, O’Neil, J.) held a three-day jury trial

    in May 2014. On May 21, 2014, the jury returned a guilty verdict on all counts.

    Following this first trial, Westgate appealed, arguing that the trial court

    provided deficient jury instructions. On September 20, 2016, we vacated the

    jury’s verdict, agreeing that the jury was not properly instructed.             We

    determined that “[t]he trial court read the indictment to the jury but did not

    specify what the elements of the criminal charges were, including the element
                                                                                   3

that the victim must have been under the age of twelve when the conduct

occurred.” State v. Westgate, 2016 ME 145, ¶ 19, 148 A.3d 716.

B.    Second Trial

      [¶6] A second trial began in May 2017. After deliberations, the jury was

deadlocked. The court (Douglas, J.) discharged the jury and declared a mistrial.

C.    Third Trial

      [¶7] The third trial—the one at issue here—took place over three days

in October 2018. Prior to the trial, the court held a motion hearing addressing

the State’s motion in limine to introduce expert testimony. The proposed

witness was trained in the forensic interviewing of child victims and was the

program manager of the Children’s Advocacy Center of York County. The State

argued that because the victim had been interviewed by law enforcement, the

witness’s expertise would help the jury understand and evaluate the interview

methods used. The State indicated that it would not ask the expert witness to

testify as to whether the victim was telling the truth. The court granted the

motion in limine, allowing the witness to testify.

      [¶8] On the first day of trial, the State’s witnesses testified that the victim

disclosed incidents of sexual acts to them. The witnesses also testified to the
4

    victim’s manifestations of anxiety, and other changes in her behavior, during

    the summer when the incidents occurred.

            [¶9] On the second day of trial, the State called its expert witness.1 The

    expert testified that methods of interviewing child victims of sexual abuse had

    evolved in the past decade.

            [¶10] On the final day of the trial, Westgate testified that he never

    sexually touched the victim. At the close of evidence, the court instructed the

    jury—over Westgate’s objection—with the State-requested instruction on

    lesser-included charges. The court instructed the jury,

            If the State does not prove beyond a reasonable doubt each and
            every one of those facts, as I have just outlined them with respect
            to each particular count, you must find Mr. Westgate not guilty of
            that particular count or counts.

                  If you conclude with respect to any of the counts, any or all of
            the counts in Counts 1 through 5, that the State has proven all but
            the age, in other words, the State has proven beyond a reasonable
            doubt that Nicholas Westgate intentionally subjected [the victim]
            to sexual contact in . . . the summer of 2009 and at the time he was
            three years—at least three years older than she was and she was
            not his spouse, but the State has not proven beyond a reasonable
            doubt that the offense or offenses occurred prior to her 12th
            birthday but you find that the State has proven beyond a
            reasonable doubt that for that count or counts that the unlawful
            sexual contact occurred prior to her 14th birthday, then you would
            convict Mr. Westgate of the lesser included offense of unlawful


      1   Westgate did not cross-examine the witness and did not object to her testimony.
                                                                                 5

      sexual contact against a person under the age of 14 for that
      particular count or counts.

            On the other hand, if you find that the State has not proven
      beyond a reasonable doubt any one of the facts required to be
      proven as outlined above with respect to the lesser included
      offense, including, without limitation, that the offense occurred
      prior to [the victim’s] 14th birthday, then you must acquit
      Mr. Westgate of the lesser included offense with respect to any
      particular count or counts.

The court provided similar instructions as to Count 6.

      [¶11] During its deliberations, the jury submitted notes with questions.

Specifically, the jury asked for written copies of the six charges, “to be clear on

each one.” Furthermore, the jury asked, “If we cannot agree on guilty for under

12, will we be then asked about the under 14 charge?” The court, after

conferring with Westgate and the State, provided the jury with the written

copies of the six charges and responded to the jury’s second question with the

word, “Yes.”

      [¶12] After deliberating for approximately thirty minutes, the jury

returned a unanimous verdict finding Westgate guilty of all charges. The jury’s

verdict was delivered to the court as follows:

      THE CLERK: Members have you agreed upon a verdict?

      THE FOREPERSON: We have.

      JURORS: Yes.
6


    THE CLERK: What say you, Mr. Foreperson, is the defendant
    Nicholas Westgate guilty or not guilty of the offense of unlawful
    sexual contact whereof defendant stands charged in Count 1?

    THE FOREPERSON: Guilty.

    THE CLERK: Guilty or not guilty of the offense of unlawful sexual
    contact whereof defendant stands charged in Count 2?

    THE FOREPERSON: Guilty.

    THE CLERK: Guilty or not guilty of the offense of unlawful sexual
    contact whereof defendant stands charged in Count 3?

    THE FOREPERSON: Guilty.

    THE CLERK: Guilty or not guilty of the offense of unlawful sexual
    contact whereof defendant stands charged in Count 4?

    THE FOREPERSON: Guilty.

    THE CLERK: Guilty or not guilty of the offense of unlawful sexual
    contact whereof defendant stands charged in Count 5?

    THE FOREPERSON: Guilty.

    THE CLERK: Guilty or not guilty of the offense of visual sexual
    aggression against a child whereof defendant stands charged in
    Count 6?

    THE FOREPERSON: Guilty.

    THE CLERK: Mr. Foreperson, have you correctly report[ed] the
    verdict?

    THE FOREPERSON: I have.
                                                                               7

      THE CLERK: So say you, Mr. Foreperson?

      THE FOREPERSON: Yes.

      THE COURT: So say you all?

      JURORS: Yes.


After the verdict was read, the jury was polled at Westgate’s request. Westgate

made no objections at the reading of the verdict or at any other time before this

appeal.

      [¶13] On February 5, 2019, the court sentenced Westgate to ten years’

imprisonment with all but sixty-eight months suspended on Count 5, with ten

years of probation, and concurrent sixty-eight-month sentences on the other

four counts of unlawful sexual contact (Counts 1–4). As to the charge of visual

sexual aggression, the court imposed a concurrent sentence of two years’

imprisonment. The court imposed $210 in fines.

      [¶14] On February 7, 2019, the State filed a motion for correction or

reduction of sentence. The motion was continued and was later granted on

May 6, 2019. The court amended Westgate’s sentences for Counts 1 to 4 to

increase them from sixty-eight months to ninety-six months. The suspended

portion of the sentence on Count 5 was increased to ninety-six months. As to

Count 6, Westgate’s sentence was reduced to twelve months. Save for those
8

    alterations, Westgate’s sentence remained unchanged.                          Westgate timely

    appealed on May 15, 2019. M.R. App. P. 2B(b)(2)(D).

                                            II. DISCUSSION

             [¶15] On appeal, Westgate argues that (A) the court erred in accepting

    the jury’s verdict, (B) prosecutorial misconduct deprived him of a fair trial, and

    (C) the court erred in admitting the expert’s testimony. We address each

    argument in turn.

    A.       Jury’s Verdict

             [¶16] Westgate argues that the court erred by accepting the jury’s

    verdict because, he contends, the verdict was ambiguous.2 Because Westgate

    did not raise this issue in the trial court—indeed, his attorney contributed to

    the court’s resolution of the jury’s questions3—we review for obvious error.

    See State v. Schofield, 2005 ME 82, ¶¶ 28-36, 895 A.2d 927; Clewley v. Whitney,




       2 Westgate seems to characterize this error as a Sixth Amendment violation. Although we have

    never addressed the issue, the United States Supreme Court has described the right to a particular
    “level of verdict specificity” as a “due process right [rather] than one under the Sixth Amendment.”
    Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991). Whatever the precise source of the right, however,
    we see nothing problematic in the general proposition that “[i]f the evidence could have supported a
    conviction for [more than one] offense, and there is nothing in the record to indicate which offense
    was meant, a verdict of this type is unalterably ambiguous and a conviction on the greater charge
    cannot stand.” State v. Baillargeon, 470 A.2d 915, 917 (N.H. 1983) (quotation marks omitted); see
    United States v. Cannon, 903 F.2d 849, 850 (1st Cir. 1990).

         The court, the State, and Westgate all participated in developing—and all agreed to—the jury
         3

    instructions and the answers submitted by the court to the jury’s questions.
                                                                                  9

2002 ME 61, ¶ 10, 794 A.2d 87. “To demonstrate obvious error, the defendant

must show that there is (1) an error, (2) that is plain, and (3) that affects

substantial rights.” State v. Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032 (quotation

marks omitted). “Even if these three conditions are met, we will set aside a

jury’s verdict only if we conclude that (4) the error seriously affects the fairness

and integrity or public reputation of judicial proceedings.” Id.

      [¶17] Westgate argues that the verdict here is ambiguous because the

jurors could have been referring to either the named counts or their

lesser-included charges. We disagree. When the jury asked for clarification of

the procedure for considering the lesser-included charge, the court instructed

the jurors that if they could “not agree on guilty under 12,” they would then “be

asked about the under 14 charge.” This instruction was sufficient to apprise

the jurors that, when the court asked if they had reached a verdict as to the

various charges “whereof the defendant stands charged,” they were being

asked for their verdict as to the named charges, not the lesser-included charges.

See United States v. Cannon, 903 F.2d 849, 852-53 (1st Cir. 1990). Furthermore,

the transcript of the subsequent polling of the jury reflects no equivocation or

uncertainty on the part of any individual juror concerning which charges were
10

 being addressed. There was no obvious error. See Clewley v. Whitney, 2002 ME

 61, ¶ 10, 794 A.2d 87.

 B.       Prosecutorial Misconduct

          [¶18] Here, Westgate alleges seven instances of misconduct. He objected

 on two instances, and five went without objection.4 “The importance of

 bringing alleged error, including prosecutorial misconduct, immediately to the

 attention of the trial court is manifested in the standards of review for errors

 that were objected to at trial and those that were unpreserved.” Dolloff, 2012

 ME 130, ¶ 31, 58 A.3d 1032.              When an objection has been made to a

 prosecutor’s statements at trial, we review to determine whether there was

 misconduct and, if so, whether the misconduct was harmless error. Id. ¶ 33.

          [¶19] “When an objection has been made to a prosecutor’s statements at

 trial, we review to determine whether there was actual misconduct, and, if so,

 whether the trial court’s response remedied any prejudice resulting from the

 misconduct.” Id. ¶ 32 (citations omitted).

          [¶20] “Harmful error is error that affects the criminal defendant’s

 substantial rights, meaning that the error was sufficiently prejudicial to have


      4Westgate’s five arguments regarding prosecutorial misconduct on questions and arguments
 made during closing to which he never objected are unpersuasive and we do not address them. Cf.
 State v. Scott, 2019 ME 105, ¶ 25, 211 A.3d 205.
                                                                                 11

affected the outcome of the proceeding.” Id. ¶ 33 (quotation marks omitted)

(citations omitted). “We determine the effect of error by looking to ‘the totality

of the circumstances, including the severity of the misconduct, the prosecutor’s

purpose in making the statement (i.e., whether the statement was willful or

inadvertent), the weight of the evidence supporting the verdict, jury

instructions, and curative instructions.’” Id. ¶ 33 (quoting United States v. De La

Paz-Rentas, 613 F.3d 18, 25 n.2 (1st Cir. 2010)). “[T]he State has the burden of

persuasion on appeal in a harmless error analysis.” Id. ¶ 39.

      [¶21] Westgate first challenges the State’s argument during its closing

argument that the victim was eleven when the incident occurred and that she

has maintained this statement consistently over several years.           Westgate

objected, contending that the prosecution’s argument appeared to be

witness-vouching. The court overruled the objection.

      [¶22] As we have previously pronounced, prosecutors cannot vouch for

their witnesses. State v. Hassan, 2013 ME 98, ¶ 33, 82 A.3d 86 (“A lawyer shall

not state a personal opinion as to . . . the credibility of a witness.” (quotation

marks omitted)). Here, because a prosecutor is free to comment on the

consistency of a witness’s testimony—just as the defense is free to comment on
12

 the inconsistency of a witness’s testimony—the prosecutor’s statement did not

 constitute vouching. There was no misconduct.

       [¶23] Westgate next argues that the prosecutor committed misconduct

 by asking him, during cross-examination, whether he attended the victim’s

 mother’s funeral.      Westgate objected and initially sought a curative

 instruction—explaining that he could not attend the funeral because of bail

 conditions restricting him from being near the victim. Westgate answered the

 question by stating that he was unable to attend, never mentioning that his bail

 conditions prevented him from attending. At sidebar, the prosecutor explained

 that he sought to demonstrate that Westgate knew of the death of the victim’s

 mother. Westgate then withdrew his request for a curative instruction. Here,

 the prosecutor’s question regarding Westgate’s attendance at the funeral was

 likely irrelevant and probably improper, but it was also insignificant because

 Westgate gave an innocuous explanation as to why he did not attend the

 funeral.

 C.    Expert Testimony

       [¶24] Lastly, Westgate challenges the admission of the expert testimony

 regarding forensic interviews of children. “We review a court’s foundational

 finding that expert testimony is sufficiently reliable for clear error, and review
                                                                                    13

for an abuse of discretion a court’s decision to admit an expert’s opinion after

finding it reliable.” State v. Maine, 2017 ME 25, ¶ 16, 155 A.3d 871 (citation

omitted). “A court abuses its discretion in ruling on evidentiary issues if the

ruling arises from a failure to apply principles of law applicable to a situation

resulting in prejudice.” Id. ¶ 23 (quoting State v. Bennett, 658 A.2d 1058, 1062

(Me. 1995)).

      [¶25] At trial, the State presented expert testimony concerning the

protocols for interviewing child sexual abuse victims. Westgate argues that

there is a considerable risk that jurors interpreted the expert’s testimony as an

endorsement—from an experienced interviewer trained to identify sexually

abused children—that the victim was truthful. Westgate contends that the

unfair prejudice resulting from the expert’s testimony substantially

outweighed its relevance.

      [¶26] “Expert testimony must meet a threshold level of reliability, and

must (1) be relevant in accordance with M.R. Evid. 401, and (2) assist the trier

of fact in understanding the evidence or determining a fact in issue.” Id. ¶ 17

(quotation marks omitted). Here, the court provided a detailed analysis in

justifying its admission of the expert testimony. Specifically, the court stated,

      [I]f an expert is properly qualified and the field of expertise is a
      reliable field, then the [c]ourt must determine whether [it is]
14

       relevant and whether it would assist the jury in this case in
       understanding the evidence or determining a fact in issue.

              As to the first issue, as to whether the witness is properly
       qualified in the fields, her reports and her testimony presented two
       distinct but related areas of expertise or information; one having to
       do with general psychological or neurological principles of
       memory formation and recall, and the second having to do with
       the—the developing practice of forensic interviewing, which
       prescribes certain protocols and formats for questioning to elicit
       in—or elicit from child victims of sexual abuse, perhaps physical
       abuse but in this case sexual abuse, complete, consistent and
       reliable answers.

       [¶27] The trial court found that the witness was qualified as an expert in

 the field of forensic interviewing and that forensic interviewing is an

 established—though developing—field that has some reliability.

       [¶28] Because the trial court properly analyzed the facts before it as they

 related to the admissibility of the expert witness’ testimony, the court did not

 clearly err in finding the State’s witness to be a qualified expert witness. See id.

 ¶ 21; see State v. Ericson, 2011 ME 28, ¶ 12, 13 A.3d 777 (delineating the indicia

 of threshold reliability); see also State v. Black, 537 A.2d 1154, 1156 (Me. 1988)

 (permitting expert testimony in part to explain timing and sequencing

 inconsistencies in the victim’s testimony)

       [¶29] Because the trial court determined that the expert’s opinion would

 assist the jurors, the trial court’s determination as to the evidence it admitted
                                                                               15

was reasonable and within the bounds of its discretion. See Maine, 2017 ME 25,

¶ 20, 155 A.3d 871 (finding no error in a trial court’s admission of expert

testimony); see State v. Bickart, 2009 ME 7, ¶ 24, 963 A.2d 183; see also Black,

537 A.2d at 1156 (“Under the Maine Rules of Evidence [702], a qualified expert

possessing specialized knowledge may testify in order to assist the trier of fact

to understand the evidence or to determine a fact in issue.”).

        [¶30] As the trial court noted, forensic interviewing techniques may be

beyond the knowledge of the average juror. To that end, the court allowed the

expert’s testimony with respect to the questioning of the victim. However, the

trial court did not allow the witness to offer opinion testimony about either the

veracity of the victim’s testimony or whether the methodologies employed by

the prior questioners were scientifically valid methods of truth-seeking.

        The entry is:

                           Judgment affirmed.



Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant
Nicholas E. Westgate

Kathryn L. Slattery, District Attorney, and Matthew Richwalder, Asst. Dist. Atty.
(orally), Prosecutorial District #1, Alfred, for appellee State of Maine


York County Superior Court docket number CR-2012-1285
FOR CLERK REFERENCE ONLY
