MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	124	
Docket:	   Oxf-17-468	
Argued:	   June	13,	2018	
Decided:	  August	21,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                              STATE	OF	MAINE	
                                                      	
                                                     v.	
                                                      	
                                            JAMES	A.	REYNOLDS	
	
	
JABAR,	J.		

         [¶1]		James	A.	Reynolds	appeals	from	a	judgment	of	conviction	for	four	

counts	 of	 gross	 sexual	 assault	 (Class	 A),	 17-A	 M.R.S.A.	 §	 253(1)(B)	 (Supp.	

1997);1	 five	 counts	 of	 unlawful	 sexual	 contact	 (Class	 C),	 17-A	 M.R.S.A.	

§	255(1)(C)	 (Supp.	 1997);2	 and	 two	 counts	 of	 sexual	 abuse	 of	 a	 minor	

(Class	C),	 17-A	 M.R.S.A.	 §	 254(3)(A)	 (Supp.	 2001),3	 entered	 in	 the	 trial	 court	


    1		Title	17-A	M.R.S.A.	§	253(1)(B)	has	since	been	amended,	but	not	in	any	way	that	affects	this	

appeal.	 	 See	 P.L.	 2001,	 ch.	 383,	 §	 14	 (effective	 Jan.	 31,	 2003);	 P.L.	 2003,	 ch.	 711,	 §	 B-2	 (effective	
July	30,	2004).	
   	
   2		The	unlawful	sexual	contact	statute	then	in	effect	has	since	been	repealed	and	replaced.		P.L.	

2001,	 ch.	 383,	 §§	 22-23	(effective	 Jan.	 31,	 2003)	 (codified	at	17-A	 M.R.S.	 §	255-A	(2017),	 as	later	
amended	by,	e.g.,	P.L.	2011,	ch.	464,	§	9	(effective	July	1,	2012)).	
   	
   3	 	 Title	 17-A	 M.R.S.A.	 §	 254(3)(A)	 has	 since	 been	 repealed	 and	 its	 contents	 incorporated	 into	

17-A	 M.R.S.	 §	 254(1)(A-2)	 (2017).	 	 P.L.	 2001,	 ch.	 383,	 §§	 21,	 156	 (effective	 Jan.	 31,	 2003).	 	 As	
Reynolds	 observes,	 the	 indictment	 and	 judgment	 and	 commitment	 refer	 to	 different	 statutory	
provisions	 for	 these	 counts.	 	 Both	 counts	 of	 the	 indictment	 refer	 to	 17-A	 M.R.S.A.	 §	 254(1)(A),	
(3)(A)	(2001)—which	applied	only	when	the	actor	was	more	than	ten	years	older	than	the	victim—
while	the	judgment	and	commitment	refers	to	17-A	M.R.S.A.	§	254(1)(A)	(2001),	which	applied	to	
2	

(Oxford	 County,	 Clifford,	 J.)	 after	 a	 jury	 trial.	 	 Reynolds	 contends	 that	 (1)	the	

court	 erred	 in	 denying	 his	 motion	 for	 judgment	 of	 acquittal	 on	 eight	 of	 the	

eleven	counts	because	“a	rational	jury	could	not	have	unanimously	found	that	

those	counts	were	supported	by	evidence	of	particular	instances	of	sexual	acts	

or	 contact”;	 (2)	 he	 was	 unfairly	 prejudiced	 by	 the	 court’s	 admission	 into	

evidence	 of	 uncharged	 sexual	 abuse;	 and	 (3)	the	 court	 erred	 in	 denying	 his	

motion	 for	 judgment	 of	 acquittal	 as	 to	 the	 1997	 and	 1998	 unlawful	 sexual	

contact	 charges	 because	 those	 charges	 were	 subject	 to	 a	 six-year	 limitations	

period	and	the	State	failed	to	commence	prosecution	within	that	time	period.		

We	disagree	and	affirm	the	judgment.	

                                       I.		BACKGROUND	

A.     Preliminary	Proceedings	

       [¶2]		In	December	2016,	Reynolds	was	indicted	on	four	counts	of	gross	

sexual	 assault,	 17-A	 M.R.S.A.	 §	 253(1)(B);	 six	 counts	 of	 unlawful	 sexual	

contact,	17-A	M.R.S.A.	§	255(1)(C);	and	two	counts	of	sexual	abuse	of	a	minor,	

17-A	M.R.S.A.	§	254(3)(A).		The	indictment	alleged	a	period	of	ongoing	abuse	

against	 the	 victim	 on	 or	 about	 April	 1	 of	 every	 year	 from	 1997	 to	 2002.	 	 In	

circumstances	where	the	actor	was	at	least	five	years	older	than	the	victim,	not	ten.		Because	the	
evidence	at	trial	demonstrated	a	greater-than-ten-year	age	gap	between	Reynolds	and	the	victim,	
and	because	the	court	instructed	the	jury	using	“more	than	10	years	older”	language,	it	appears	that	
Reynolds	was	instead	convicted	pursuant	to	17-A	M.R.S.A.	§	254(3)(A)	(Supp.	2001).		The	judgment	
and	commitment	must	be	corrected	to	reflect	the	proper	conviction.	
                                                                                                       3	

Count	1	through	Count	8,	Reynolds	was	charged	with	committing	one	count	of	

gross	 sexual	 assault	 and	 one	 count	 of	 unlawful	 sexual	 contact	 against	 the	

victim	 on	 or	 about	 April	 1	 of	 every	 year	 from	 1997	 to	 2000.	 	 In	 Count	 9	

through	Count	12,	Reynolds	was	charged	with	committing	one	count	of	sexual	

abuse	of	a	minor	and	one	count	of	unlawful	sexual	contact	against	the	victim	

on	or	about	April	1	of	2001	and	2002.4			

B.       Motion	In	Limine	Proceedings	

	        [¶3]	 	 After	 jury	 selection	 in	 June	 2017,	 the	 State	 moved	 in	 limine,	

pursuant	 to	 M.R.	 Evid.	 404(b),	 to	 permit	 the	 admission	 of	 evidence	 of	

uncharged	sexual	abuse	alleged	to	have	taken	place	outside	of	Oxford	County.		

According	 to	 the	 State,	 evidence	 of	 this	 conduct	 was	 admissible	 to	

“demonstrate	 [Reynolds’s]	 opportunity	 to	 commit	 the	 sexual	 abuse,	 the	

relationship	between	the	parties,	as	well	as	the	intent	to	commit	the	ongoing	

abuse.”	 	Reynolds	opposed	the	 motion,	 arguing	that	admission	of	the	 alleged	

abuse	violated	both	Rule	404(b)	and	M.R.	Evid.	403.			

	        [¶4]		A	hearing	on	the	motion	in	limine	was	held	before	trial	on	July	17,	

2017.		The	State	clarified	that	although	the	“[t]he	majority	of	the	sexual	abuse	

occurred	 in	 an	 apartment	 in	 .	 .	 .	 Paris	 [Oxford	 County],”	 incidents	 also	


     4		Before	trial,	pursuant	to	M.R.U.	Crim.	P.	48(a),	the	State	dismissed	Count	12	due	to	insufficient	

evidence.			
4	

occurred	“on	the	road	and	while	out	camping.		And	so	the	[S]tate	would	like	to	

make	 reference	 to	 those	 in	 [its]	 testimony.”	 	 Reynolds	 continued	 to	 argue	

against	the	admissibility	of	the	uncharged	abuse,	contending	that	“[the	victim]	

is	claiming	about	100	incidents,	80	percent	of	those	happened	at	the	house,	at	

the	apartment.	.	.	.		What	is	the	purpose	of	bringing	in	uncharged	incidents?”		

The	 court	 concluded	 that	 the	 proposed	 evidence	 was	 properly	 admissible	

under	 Rule	 404(b)	 pursuant	 our	 decision	 in	 State	 v.	 DeLong,	 505	 A.2d	 803,	

805-06	 (Me.	 1986),	 because	 it	 was	 probative	 to	 demonstrate	 that	 “the	

relationship	between	the	parties	is	that	this	defendant	.	.	.	considered	this,	you	

know,	 his	 –	 his	 sexual	 toy.	 	 I	 mean	 he	 did	 this	 –	 he	 did	 this	 as	 a	 matter	 of	

course	wherever	he	went.”		However,	in	order	to	limit	the	prejudicial	effect	of	

these	 uncharged	 incidents,	 the	 court	 specified	 that	 the	 victim	 would	 not	 be	

permitted	to	describe	the	uncharged	conduct	“in	detail.”			

       [¶5]	 	 Reynolds	 preserved	 his	 objection	 to	 the	 evidence	 pursuant	 to	

Rule	403,	claiming	the	unfair	prejudice	created	by	that	evidence	substantially	

outweighed	 its	 probative	 value.	 	 However,	 after	 Reynolds	 was	 given	 the	

opportunity	to	request	a	limiting	instruction	regarding	the	proper	 use	of	the	

uncharged	 conduct,	 he	 stated	 that	 he	 did	 not	 wish	 to	 do	 so.	 	 Specifically,	 in	
                                                                                                       5	

response	 to	 the	 court’s	 statement,	 “You’re	 entitled	 to	 [a	 limiting	 instruction]	

.	.	.	[a]nd	you	affirmatively	waive	that,”	Reynolds	replied,	“Yes.”			

C.      Factual	History	

	       [¶6]	 	 The	 case	 then	 proceeded	 to	 trial.	 	 Viewing	 the	 trial	 record	 in	 the	

light	 most	 favorable	 to	 the	 State,	 the	 jury	 could	 rationally	 have	 found	 the	

following	facts	beyond	a	reasonable	doubt.		See	State	v.	Haag,	2012	ME	94,	¶	2,	

48	A.3d	207.		The	victim	was	born	in	April	1987	and	was	nine	years	old	when	

she	 first	 met	 Reynolds,	 who	 was	 born	 on	 March	 30,	 1969.	 	 At	 the	 time,	 the	

victim	 was	 living	 with	 her	 grandparents	 in	 Oxford,	 but	 she	 subsequently	

moved	 into	 an	 apartment	 in	 South	 Paris	 with	 her	 mother,	 brother,	 and	

Reynolds.			

	       [¶7]	 	 The	 victim	 was	 sexually	 abused	 by	 Reynolds	 for	 “most	 of	 [her]	

childhood.”	 	 The	 first	 incident	 occurred	 when	 she	 was	 nine	 and	 Reynolds	

touched	her	genitals	while	he	was	driving	with	her	in	his	work	vehicle.5		From	

that	 point	 on,	 Reynolds	 touched	 her	 genitals	 weekly,	 “more	 times	 than	 [she]	

can	count,”	until	she	was	sixteen.		Starting	when	the	victim	was	ten	years	old,	

Reynolds	also	forced	her	to	put	her	hands	on	his	genitals.		The	abuse	typically	


   5		Because	this	conduct	occurred	when	the	victim	was	nine	years	old,	and	the	indictment	charged	

Reynolds	 with	 committing	 the	 sexual	 abuse	 beginning	 on	 the	 victim’s	 tenth	 birthday,	 this	 was	
ostensibly	one	of	the	uncharged	incidents	that	the	court	admitted	pursuant	to	M.R.	Evid.	404(b)	and	
M.R.	Evid.	403.	
6	

began	by	Reynolds	saying	“something	like	he	wanted	to	play[,]	and	then	 just	

do	what	he	wanted	from	there.”		The	abuse	occurred	after	the	victim	got	home	

from	 school	 but	 before	 her	 mother	 got	 home	 from	 work,	 or	 on	 weekend	

mornings	when	her	mother	was	either	at	work	or	grocery	shopping.			

      [¶8]		When	the	victim	was	ten	years	old,	Reynolds	forced	her	to	put	her	

mouth	 on	 his	 genitals	 while	 they	 were	 alone	 in	 the	 South	 Paris	 apartment.		

Starting	when	she	was	twelve	years	old,	Reynolds	removed	the	victim’s	pants	

and	 put	 his	 tongue	 on	 her	 genitals.	 	 Also	 when	 the	 victim	 was	 twelve,	

Reynolds	touched	her	genitals	with	his	genitals.			

      [¶9]		In	addition	to	her	testimony	regarding	specific	incidents	of	abuse,	

the	victim	also	testified	that	Reynolds	either	(1)	touched	her	genitals	with	his	

hand	or	mouth;	or	(2)	forced	her	to	touch	his	genitals	with	her	hand	or	mouth	

on	a	weekly	basis	until	she	was	sixteen	years	old.			

      [¶10]	 	 At	 no	 time	 were	 the	 victim	 and	 Reynolds	 married.	 	 When	 the	

abuse	 began,	 Reynolds	 told	 her	 that	 she	 would	 be	 in	 trouble	 if	 she	 said	

anything,	and	she	never	told	anyone	about	the	abuse	while	it	was	happening.		

In	2015,	the	victim	finally	told	her	then-fiancé	what	had	happened	to	her.			
                                                                                       7	

D.	   Specific	Unanimity	Instruction	

	     [¶11]	 	 At	 the	 close	 of	 the	 State’s	 case-in-chief,	 Reynolds	 moved	 for	 a	

judgment	 of	 acquittal	 pursuant	 to	 M.R.U.	 Crim.	 P.	 29(a),	 which	 the	 court	

denied.	 	 After	 the	 close	 of	 the	 evidence,	 the	 court	 instructed	 the	 jury	 on	

specific	 unanimity.	 	 See	 State	 v.	 Hanscom,	 2016	 ME	 184,	 ¶¶	 11-12,	 152	 A.3d	

632.		Reynolds	objected	to	the	court’s	initial	instruction,	stating	that	it	was	“a	

bit	 of	 a	 summary”	 and	 requesting	 that	 the	 court	 read	 the	 unanimity	

instruction	“exactly	as	it’s	written.”		The	court	agreed	to	do	so	and	recited	the	

specific	 unanimity	 instruction	 to	 the	 jury,	 generally	 tracking	 the	 language	

suggested	 in	 the	 Maine	 Jury	 Instruction	 Manual.	 	 See	 Alexander,	 Maine	 Jury	

Instruction	Manual	§	6-65	at	6-133	(2017-2018	ed.).		There	was	no	objection	

to	this	instruction.			

E.	   Conviction	and	Sentencing	Proceedings	
	
      [¶12]		The	jury	returned	guilty	verdicts	on	all	counts,	and	a	sentencing	

hearing	 was	 held	 in	 October	 2017.	 	 The	 court	 sentenced	 Reynolds	 to	 fifteen	

years’	imprisonment,	all	but	ten	years	suspended,	with	six	years’	probation	for	

each	 count	 of	 gross	 sexual	 assault,	 to	 be	 served	 concurrently	 with	 one	

another.	 	 In	 addition,	 the	 court	 sentenced	 Reynolds	 to	 five	 years’	

imprisonment	 for	 each	 of	 the	 unlawful	 sexual	 contact	 and	 sexual	 abuse	 of	 a	
8	

minor	charges,	also	to	be	served	concurrently	with	the	other	sentences.		This	

appeal	followed.		See	M.R.	App.	P.	2B(b)(1);	15	M.R.S.	§	2115	(2017).	

                                          II.		DISCUSSION	

A.        Specific	Unanimity	

          [¶13]		Reynolds	contends	that	because	the	victim	testified	only	to	“three	

discrete	 occasions	 of	 sexual	 acts	 or	 contact	 .	 .	 .	 only	 three	 convictions	 could	

possibly	have	been	the	result	of	unanimous	findings.”6		According	to	Reynolds,	

because	 the	 victim	 testified	 that	 there	 were	 “hundreds	 of	 sexual	 acts	 and	

incidents	 of	 sexual	 contact”	 but	 “only	 mentioned	 three	 in	 enough	 detail	 to	

distinguish	 one	 from	 any	 other,”	 the	 jury	 could	 not	 have	 unanimously	 found	

that	he	committed	the	additional	eight	offenses	charged	in	the	indictment.			

          [¶14]	 	 “We	 review	 the	 denial	 of	 a	 motion	 for	 judgment	 of	 acquittal	 by	

viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State	 to	 determine	

whether	a	jury	could	rationally	have	found	each	element	of	the	crime	proven	

beyond	a	reasonable	doubt.”		State	v.	Waterman,	2010	ME	45,	¶	29,	995	A.2d	

243.			


     6		Reynolds	argues	that	the	jury	could	have	rationally	agreed	on	only	three	specific	incidents	of	

sexual	abuse—when	Reynolds	(1)	touched	her	genitals	in	his	work	vehicle,	(2)	forced	her	to	put	her	
mouth	on	his	genitals	while	in	the	apartment,	and	(3)	touched	her	genitals	with	his	genitals	in	the	
living	room.		However,	because	the	abuse	in	the	work	vehicle	occurred	outside	of	Oxford	County’s	
jurisdiction	and	when	the	victim	was	nine	years	old—rather	than	ten,	as	alleged	in	the	first	count	of	
the	 indictment—the	 jury	 could	 not	 have	 rationally	 agreed	 that	 the	 work	 vehicle	 incident	
constituted	one	of	the	incidents	alleged.		
                                                                                         9	

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

and	convictions,	shall	be	held	indispensable.”		Me.	Const.	art.	I,	§	7.		As	we	have	

previously	 explained,	 “[c]ourts	 regularly	 encounter	 indictments	 that	 may	

aggregate,	in	one	count	of	the	indictment,	several	identical	crimes	committed	

against	 one	 or	 more	 victims.”	 	 State	 v.	 Fortune,	 2011	 ME	 125,	 ¶	 26,	 34	 A.3d	

1115.		This	is	especially	common	in	cases	where,	as	here,	there	are	allegations	

of	“multiple	sex	acts	committed	against	a	minor	child.”		Id.;	see,	e.g.,	Hanscom,	

2016	ME	184,	¶¶	2,	9,	152	A.3d	632;	State	v.	Shulikov,	1998	ME	111,	¶	11,	712	

A.2d	 504;	 State	 v.	 Cloutier,	 1997	 ME	 96,	 ¶	 2,	 695	 A.2d	 550.	 	 Thus,	 when	

separate	 but	 similar	 incidents	 “are	 the	 evidence	 supporting	 a	 single	 charge,	

the	jury	must	unanimously	find	that	one	specific	incident	occurred.”		Fortune,	

2011	ME	125,	¶	31,	34	A.3d	1115;	see	Hanscom,	2016	ME	184,	¶	12,	152	A.3d	

632	 (“[T]he	 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.”).			

      [¶16]	 	 Our	 previous	 opinions	 in	 this	 area,	 however,	 have	 not	 directly	

addressed	the	specificity	of	the	evidence	required	to	support	a	unanimous	jury	

verdict	 of	 guilty	 on	 multiple	 sexual	 offenses.	 	 See	 generally,	 e.g.,	 Hanscom,	

2016	ME	 184,	 152	 A.3d	 632;	 Shulikov,	 1998	 ME	 111,	 712	 A.2d	 504;	 Cloutier,	
10	

1997	 ME	 96,	 695	 A.2d	 550.	 	 For	 example,	 in	 Hanscom,	 we	 reviewed	 a	 trial	

court’s	 denial	 of	 a	 request	 for	 a	 specific	 unanimity	 instruction	 where	 the	

defendant	was	charged	with	two	counts	of	unlawful	sexual	contact	involving	

two	 victims.	 	 2016	 ME	 184,	 ¶¶	 2,	 6,	 152	 A.3d	 632.	 	 In	 that	 case,	 one	 of	 the	

victims	testified	that	the	defendant	abused	her	“like	every	day	we	slept	[at	the	

defendant’s	 house],”	 and	 the	 other	 victim	 testified	 that	 the	 abuse	 occurred	

“more	 than	 once	 but	 it	 didn’t	 always	 happen.”	 	 Id.	 ¶	 4	 (quotation	 marks	

omitted).		In	concluding	that	the	court	erred	in	declining	to	give	the	requested	

specific	unanimity	instruction,	we	explained	that		

       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	 .	 .	 .	 the	 specific	 unanimity	 instruction	 [would]	
       prevent[]	 jury	 confusion	 and	 .	 .	 .	 ensure	 that	 a	 guilty	 verdict	 is	
       based	on	the	jury’s	unanimous	conclusion	that	the	State	proved	a	
       single	criminal	episode.		
       	
Id.	¶	12.			

       [¶17]	 	 Thus,	 although	 we	 suggested	 in	 Hanscom	 that	 a	 properly	

instructed	 jury	 could	 have	 relied	 on	 the	 victims’	 testimony	 to	 unanimously	

find	the	defendant	guilty	on	both	counts,	our	holding	was	limited	to	the	issue	

of	 whether	 the	 court	 erred	 in	 denying	 the	 requested	 specific	 unanimity	

instruction.		See	id.			
                                                                                       11	

      [¶18]	 	 In	 Shulikov,	 a	 case	 in	 which	 the	 defendant	 did	 not	 request	 a	

specific	 unanimity	 instruction,	 we	 considered	 an	 issue	 closely	 related	 to	 the	

one	 at	hand—whether	the	State	presented	sufficient	evidence	for	the	jury	to	

rationally	 find	 that	 the	 defendant	 committed	 gross	 sexual	 assault	 against	 a	

victim	on	eight	particular	occasions.		1998	ME	111,	¶	11,	712	A.2d	504.		There,	

the	 victim	 specifically	 testified	 as	 to	 two	 instances	 of	 sexual	 assault	 by	 the	

defendant,	 her	 father,	 in	 early	 1993	 and	 1995,	 and	 also	 testified	 that	 she	

endured	 an	 “overall	 pattern	 of	 sexual	 abuse	 by	 her	 father”	 during	 which	 he	

had	sexually	 assaulted	her	three	times	a	week	between	January	1,	1993,	and	

December	31,	1994.		Id.	¶¶	3,	11,	12.					

      [¶19]		Relevant	to	this	case,	we	rejected	the	defendant’s	contention	that	

the	 trial	 record	 was	 sufficient	 only	 to	 sustain	 convictions	 based	 on	 the	 two	

specific	 acts	 she	 described—but	 not	 the	 eight	 counts	 alleged	 during	 the	

“overall	pattern	of	sexual	abuse”	between	January	1,	1993,	and	December	31,	

1994—concluding	that	

      the	 jury	 reasonably	 could	 have	 believed	 the	 victim’s	 testimony	
      that	 [the	 defendant]	 engaged	 in	 sexual	 intercourse	 with	 her	 at	
      least	 once	 a	 week	 during	 the	 time	 periods	 charged	 in	 the	
      indictment.		This	testimony	is	sufficient	for	the	jury	to	find	every	
      element	of	gross	sexual	assault	beyond	a	reasonable	doubt.		There	
      is	no	requirement	that	each	count	must	be	substantiated	by	details	
      as	to	time,	place,	and	location	.	.	.	.	
      	
12	

Id.	¶¶	11-13	(emphasis	added).	

      [¶20]	 	 As	 such,	 although	 only	 by	 implication,	 our	 case	 law	 has	

recognized	that	specific	evidence	of	particular	incidents	of	sexual	abuse	is	not	

required	 to	 support	 a	 unanimous	 jury	 verdict	 of	 guilty	 for	 multiple	 sexual	

crimes.			

      [¶21]	 	 In	 cases	 involving	 allegations	 of	 multiple	 acts	 of	 sexual	 abuse	

committed	against	children,	the	victims,	who	claim	to	have	been	abused	over	

a	 substantial	 period	 of	 time,	 “may	 have	 no	 practical	 way	 of	 recollecting,	

reconstructing,	 distinguishing	 or	 identifying	 by	 specific	 incidents	 or	 dates	 all	

or	 even	 any	 such	 incidents.”	 	 People	 v.	 Jones,	 792	 P.2d	 643,	 648	 (Cal.	 1990)	

(quotation	 marks	 omitted).	 	 As	 the	 Washington	 Court	 of	 Appeals	 has	

observed,	 “The	 more	 frequent	 and	 repetitive	 the	 abuse,	 the	 more	 likely	 it	

becomes	 that	 the	 victim	 will	 be	 unable	 to	 recall	 specific	 dates	 and	 places.		

Moreover,	 because	 the	 molestation	 usually	 occurs	 outside	 the	 presence	 of	

witnesses,	 and	 often	 leaves	 no	 permanent	 physical	 evidence,	 the	 state’s	 case	

rests	on	the	testimony	of	a	victim	whose	memory	may	be	clouded	by	a	blur	of	

abuse	 and	 a	 desire	 to	 forget.”	 	 State	 v.	 Brown,	 780	 P.2d	 880,	 885	 (Wash.	

Ct.	App.	1989).			
                                                                                    13	

      [¶22]		For	this	reason,	these	types	of	cases	present	challenges	involving	

questions	relating	to	the	sufficiency	of	the	evidence	and	the	defendant’s	right	

to	due	process.		Acknowledging	such	challenges	in	Jones,	the	Supreme	Court	of	

California	reasoned,	

              The	 victim,	 of	 course,	 must	 describe	the	 kind	 of	 act	 or	 acts	
      committed	with	sufficient	specificity,	both	to	assure	that	unlawful	
      conduct	 indeed	 has	 occurred	 and	 to	 differentiate	 between	 the	
      various	 types	 of	 proscribed	 conduct	 (e.g.,	 lewd	 conduct,	
      intercourse,	 oral	 copulation	 or	 sodomy).	 	 Moreover,	 the	 victim	
      must	 describe	 the	 number	 of	 acts	 committed	 with	 sufficient	
      certainty	to	support	each	of	the	counts	alleged	in	the	information	
      or	 indictment	 (e.g.,	 “twice	 a	 month”	 or	 “every	 time	 we	 went	
      camping”).		Finally,	the	victim	must	be	able	to	describe	the	general	
      time	period	in	which	these	acts	occurred	(e.g.,	“the	summer	before	
      my	fourth	grade,”	or	“during	each	Sunday	morning	after	he	came	
      to	 live	 with	 us”)	 to	 assure	 the	 acts	 were	 committed	 within	 the	
      applicable	 limitation	 period.		 Additional	 details	 regarding	 the	
      time,	 place	 or	 circumstance	 of	 the	 various	 assaults	 may	 assist	 in	
      assessing	 the	 credibility	 or	 substantiality	 of	 the	 victim’s	
      testimony,	but	are	not	essential	to	sustain	a	conviction.	
      	
792	P.2d	at	655-56.	
	
      [¶23]	 	 We	 agree	 that	 the	 State	 is	 not	 required	 to	 present	 specific	

evidence	of	separate	 and	discrete	incidents	of	abuse	for	the	 jury	to	convict	a	

defendant	of	every	charged	offense,	so	long	as	the	jury	is	properly	instructed	

on	specific	unanimity,	see	Hanscom,	2016	ME	184,	¶	12,	152	A.3d	632,	and	we	

concur	 with	 the	 Jones	 court	 that	 “the	 particular	 details	 surrounding	 a	 child	

molestation	 charge	 are	 not	 elements	 of	 the	 offense	 and	 are	 unnecessary	 to	
14	

sustain	a	conviction,”	Jones,	792	P.2d	at	655;	see	Commonwealth	v.	Kirkpatrick,	

668	N.E.2d	790,	793	(Mass.	1996).		

       [¶24]	 	 Accordingly,	 we	 are	 not	 persuaded	 by	 Reynolds’s	 assertion	 that	

jury	 unanimity	 on	 multiple	 counts	 of	 sexual	 abuse	 is	 unattainable	 where	

evidence	 of	 that	 abuse	 is	 supported	 by	 “generic”	 testimony.	 	 Although	 the	

constitutional	 right	 to	 specific	 unanimity	 requires	 a	 jury	 to	 find	 that	 a	 crime	

was	 committed	 on	 “some	 particular	 occasion,”	 Hanscom,	 2016	 ME	 184,	 ¶	 12,	

152	A.3d	632,	“even	generic	testimony	describes	a	repeated	series	of	specific,	

though	indistinguishable,	acts	of	molestation,”	Jones,	792	P.2d	at	658.		Despite	

the	fact	that	a	jury	“may	not	be	able	to	readily	distinguish	between	the	various	

acts,	it	is	certainly	capable	of	unanimously	agreeing	that	they	took	place	in	the	

number	and	manner	described.”		Id.		Indeed,	“a	jury	will	either	believe	that	a	

consistent	 and	 repetitive	 pattern	 of	 abuse	 has	 occurred,	 of	 necessity	

encompassing	 a	 number	 of	 discrete	 acts,	 or	 they	 will	 disbelieve	 it.”		

Kirkpatrick,	668	N.E.2d	at	794;	see	State	v.	Logan,	2014	ME	92,	¶	17,	97	A.3d	

121	 (evidence	 that	 a	 crime	 was	 committed	 may	 be	 presented	 by	 way	 of	 the	

victim’s	testimony	which,	“by	itself,	is	sufficient	to	support	a	guilty	verdict	for	

a	sex	crime	.	.	.	if	the	testimony	addresses	each	element	of	the	crime	and	is	not	

inherently	incredible”	(quotation	marks	omitted));	State	v.	Marden,	673	 A.2d	
                                                                                       15	

1304,	 1312	 (Me.	1996)	 (“The	 weight	 to	 be	 given	 to	 the	 evidence	 and	 the	

determination	 of	 witness	 credibility	 are	 the	 exclusive	 province	 of	 the	 jury.”).		

So	 long	 as	 a	 victim’s	 testimony	 is	 both	 credible	 and	 sufficiently	 definite	 to	

address	 every	 element	 of	 the	 offenses	 charged,	 a	 jury	 is	 not	 precluded	 from	

unanimously	finding	a	defendant	guilty	on	those	charges	beyond	a	reasonable	

doubt.	

      [¶25]		In	this	case,	the	victim	testified	that	beginning	when	she	was	nine	

years	old	and	continuing	weekly	until	she	was	sixteen,	Reynolds	touched	her	

genitals,	in	violation	of	17-A	M.R.S.A.	§	255(1)(C).		The	victim	further	testified	

that	by	the	time	she	was	ten	years	old	and	continuing	“probably	once	a	week”	

thereafter,	Reynolds	began	forcing	her	to	touch	his	genitals,	also	in	violation	of	

17-A	M.R.S.A.	§	255(1)(C).		In	addition,	the	victim	testified	that	when	she	was	

ten	years	old,	Reynolds	forced	her	to	put	her	mouth	on	his	genitals,	and	when	

she	 was	 twelve	 years	 old,	 Reynolds	 put	 his	 tongue	 on	 her	 genitals,	 both	 in	

violation	 of	 17-A	 M.R.S.A.	 §	253(1)(B).	 	 According	 to	 the	 victim,	 this	 conduct	

also	 occurred	 “probably	 once	 a	 week”	 until	 she	 was	 sixteen	 years	 old,	 in	

violation	 of	 17-A	 M.R.S.A.	 §§	 253(1)(B)	 and	 254(3)(A).	 	 Thus,	 although	 the	

jury	 may	 have	 been	 unable	 to	 distinguish	 among	 many	 of	 the	 various	 acts	

described	during	this	pattern	of	consistent	abuse,	it	was	“certainly	capable	of	
16	

unanimously	 agreeing”	 that	 the	 victim’s	 testimony	 was	 credible,	 that	 this	

pattern	 of	 abuse	 occurred,	 and	 that	 discrete	 acts	 comprising	 this	 pattern	 of	

abuse	 took	 place	 on	 or	 about	 the	 dates	 alleged	 in	 the	 indictment.	 	 See	 Jones,	

792	P.2d	at	658.	

B.     Uncharged	Conduct	

       [¶26]		Reynolds	next	argues	that	the	court	erred	in	admitting	evidence	

of	uncharged	sexual	abuse	because	“[t]he	jury	was	essentially	encouraged	to	

punish	[him]	for	a	pattern	of	alleged,	yet	uncharged	behavior.”			

       [¶27]	 	 As	 a	 preliminary	 matter,	 we	 note	 that	 Reynolds’s	 theory	 on	

appeal	 differs	 from	 the	 one	 he	 advanced	 before	 the	 trial	 court.	 	 In	 opposing	

the	 State’s	 motion	 in	 limine,	 Reynolds	 argued	 only	 against	 the	 victim’s	

references	to	sexual	abuse	occurring	outside	of	Oxford	County—“on	the	road	

and	while	out	camping”—and	not	conduct	that	occurred	in	the	family’s	Paris	

apartment.	 	 Here,	 however,	 Reynolds	 argues	 that	 the	 uncharged	 conduct	

included	not	only	each	act	outside	of	Oxford	County,	but	also	every	referenced	

act	 of	 sexual	 abuse	 beyond	 the	 eleven	 acts	 specifically	 alleged	 in	 the	

indictment.		According	to	Reynolds,	this	means	that	“the	jury’s	verdict	on	eight	

of	 the	 eleven	 counts	 is	 necessarily	 based	 on	 .	 .	 .	 generalized	 evidence	

overwhelmingly	comprised	of	uncharged	conduct.”			
                                                                                          17	

       [¶28]	 	 Because	 Reynolds,	 having	 been	 unsuccessful	 in	 his	 alternative	

argument	 before	 the	 trial	 court,	 has	 now	 changed	 his	 theory	 on	 appeal,	 we	

deem	 his	 current	 argument	 waived.	 	 See	 Teel	 v.	 Colson,	 396	 A.2d	 529,	 534	

(Me.	1979).		Even	if	Reynolds	had	preserved	this	issue,	however,	it	would	be	

unavailing.	 	 Rather	 than	 charging	 Reynolds	 with	 upwards	 of	 300	 counts	 of	

sexual	 abuse—according	 to	 the	 victim’s	 testimony,	 she	 was	 abused	 at	 least	

once	 weekly	 over	 the	 course	 of	 six	 years—the	 State,	 in	 exercising	 its	

prosecutorial	discretion,	elected	to	charge	him	with	only	one	act	of	abuse	per	

year	 within	 that	 period	 of	 time.	 	 See	 State	 v.	 Heald,	 382	 A.2d	 290,	 301	

(Me.	1978)	 (“[A]	 reasonable	 prosecutorial	 discretion	 in	 the	 enforcement	 of	

criminal	 laws	 is	 inherent	 in	 our	 criminal	 justice	 system	 .	 .	 .	 .”).	 	 The	 court	

properly	 determined	 that	 evidence	 of	 Reynolds’s	 ongoing	 abuse	 was	

admissible	 to	 show	 the	 relationship	 between	 him	 and	 the	 victim.	 	 See	 M.R.	

Evid.	404(b);	DeLong,	505	A.2d	at	805-06.	

       [¶29]	 	 Moreover,	 Reynolds’s	 argument	 that	 he	 was	 unfairly	 prejudiced	

by	 the	 admission	 of	 this	 evidence	 is	 unpersuasive	 for	 three	 reasons.	 	 First,	

when	 a	 defendant	 believes	 he	 has	 been	 unfairly	 prejudiced	 by	 the	

consolidation	 of	 several	 identical	 crimes	 into	 one	 count	 of	 an	 indictment,	 he	

may	move	for	relief	from	prejudicial	joinder	pursuant	to	M.R.U.	Crim.	P.	8(d).		
18	

Fortune,	 2011	 ME	 125,	 ¶	 27,	 34	 A.3d	 1115.	 	 Reynolds	 failed	 to	 do	 so.		

Moreover,	 although	 Reynolds	 argues	 that	 he	 was	 unfairly	 prejudiced	 by	 “the	

generic	testimony	and	lack	of	discrete	events	in	this	case,”	he	did	not	request	a	

bill	 of	 particulars	 pursuant	 to	 M.R.U.	 Crim.	 P.	 16(d)(1)	 and	 is	 therefore	

presumed	to	have	known	which	crimes	he	was	required	to	defend	against	at	

trial.		See	Cloutier,	1997	ME	96,	¶	9,	695	A.2d	550.		Finally,	Reynolds	expressly	

waived	his	right	to	a	limiting	instruction	regarding	uncharged	conduct,	and	is	

thereby	precluded	from	now	contending	that	the	jury	could	have	decided	the	

case	 on	 an	 improper	 basis.	 	 See	 State	 v.	 Roman,	 622	 A.2d	 96,	 99	 (Me.	 1993)	

(“[I]n	 the	 absence	 of	 a	 request	 to	 the	 court	 to	 provide	 a	 limiting	 instruction,	

we	can	assume	that	counsel	concluded	that	a	limiting	instruction	would	have	

overemphasized	 the	 importance	 of	 the	 evidence	 and	 decided	 to	 forego	 the	

request	for	strategic	reasons.”	(quotation	marks	omitted)).	

C.     Statute	of	Limitations	

       [¶30]	 	 Finally,	 Reynolds	 argues	 that	 the	 court	 erred	 in	 denying	 his	

motion	 for	 judgment	 of	 acquittal	 as	 to	 Counts	 2	 and	 4—which	 alleged	

unlawful	 sexual	 contact	 on	 or	 about	 April	 1,	 1997,	 and	 April	 1,	 1998,	

respectively—because	 those	 counts	 were	 subject	 to	 a	 six-year	 statute	 of	
                                                                                                     19	

limitations	 and	 the	 State	 failed	 to	 commence	 prosecution	 within	 that	 time	

period.			

        [¶31]		We	disagree.		Reynolds	is	correct	that,	before	1999,	the	criminal	

code	provided	for	a	six-year	statute	of	limitations	for	unlawful	sexual	contact.		

17-A	 M.R.S.A.	 §	 8(1),	 (2)(A)	 (Supp.	 1997);	 17-A	 M.R.S.A.	 §	 8(1),	 2(A)	 (Supp.	

1998),	 amended	 by	 P.L.	 1999,	 ch.	 438,	 §§	1-2	 (effective	 Sept.	 18,	 1999).		

However,	 the	 Legislature	 amended	 the	 Criminal	 Code	 in	 1999	 to	 remove	 the	

previous	 limitations	 period	 in	 1999,	 and	 that	 amendment	 applied	

retroactively	to	the	prosecution	of	crimes	where	the	victim	was	younger	than	

sixteen	 years	 old	 and	 where	 prosecution	 under	 the	 previous	 six-year	

limitations	period	had	not	 yet	been	barred.		P.L.	1999,	ch.	 438,	§	3	 (effective	

Sept.	 18,	 1999).	 	 Because	 the	 victim	 was	 under	 sixteen	 years	 old	 when	

Reynolds	 committed	 unlawful	 sexual	 contact	 in	 1997	 and	 1998,	 and	 the	

six-year	 limitations	 period	 for	 those	 crimes	 had	 not	 yet	 expired	 when	 the	

Legislature	removed	the	statute	of	limitations	defense	in	1999,	the	State	was	

not	 prohibited	 from	 initiating	 prosecution	 for	 those	 offenses	 in	 2016.7	 	 See	

Stogner	v.	California,	539	U.S.	607,	611,	616-19	(2003).	


    7	 	 Because	 the	 1999	 amendment	 only	 applied	 retroactively	 to	 offenses	 where	 the	 original	

six-year	 limitations	 period	 had	 not	 yet	 expired,	 we	 are	 unpersuaded	 by	 Reynolds’s	 additional	
contention	that	the	1999	amendment	constitutes	an	ex	post	facto	law,	in	violation	of	Me.	Const.	art.	
I,	§	11.		See	Stogner	v.	California,	539	U.S.	607,	611	(2003)	(reasoning	that	an	ex	post	facto	violation	
20	

         The	entry	is:	

                            Judgment	affirmed.		Remanded	for	correction	of	
                            the	 statutory	 references	 in	 the	 judgment	 and	
                            commitment	on	Counts	9	and	11.	
	
	      	     	      	      	     	
	
Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	James	
A.	Reynolds	
	
Andrew	 S.	 Robinson,	 District	 Attorney,	 and	 Alexandra	 W.	 Winter,	 Asst.	 Dist.	
Atty.	(orally),	Office	of	the	District	Attorney,	South	Paris,	for	appellee	State	of	
Maine	
	
	
Oxford	County	Unified	Criminal	Docket	docket	number	CR-2016-714	
FOR	CLERK	REFERENCE	ONLY	




occurs	where	a	limitations	period	is	extended	“after	the	State	has	assured	a	man	that	he	has	become	
safe	from	its	pursuit”	(emphasis	added)	(quotation	marks	omitted)).	
