MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2013 ME 21
Docket:   Yor-13-55
Argued:   February 13, 2013
Decided:  February 15, 2013

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
                JABAR, JJ.


                                 STATE OF MAINE

                                          v.

                               MARK W. STRONG SR.

LEVY, J.

         [¶1] The State of Maine appeals from an order of the trial court (Mills, J.)

granting Mark W. Strong’s motion to dismiss part of an indictment for failure to

adequately charge forty-five counts of violation of privacy (Class D), 17-A M.R.S.

§ 511(1)(B), (3) (2012), and one count of conspiracy to commit a violation of

privacy (Class E), 17-A M.R.S. §§ 151(1)(E), 511(1)(B), (3) (2012). The State

contends that the court erred in granting the M.R. Crim. P. 12(b)(2) motion

because it was untimely and the indictment adequately charges offenses pursuant

to the applicable statutes. We affirm the court’s order.

                                 I. BACKGROUND

         [¶2]    On October 3, 2012, Strong was charged by a fifty-nine-count

indictment that included twelve counts of promotion of prostitution (Class D),
2

17-A M.R.S. § 853 (2012); one count of conspiracy to commit promotion of

prostitution (Class E), 17-A M.R.S. §§ 151(1)(E), 853; forty-five counts of

violation of privacy (Class D), 17-A M.R.S. § 511(1)(B), (3); and one count of

conspiracy to commit a violation of privacy (Class E), 17-A M.R.S. §§ 151(1)(E),

511(1)(B), (3).   The counts charging a violation of privacy contained nearly

identical language and read:

      On or about between [month, date, and year] and [month, date, and
      year], in Kennebunk, YORK County, Maine, MARK W STRONG
      SR, did intentionally install or use on one or more occasions in a
      private place, without the consent of the person or persons entitled to
      privacy therein, a device for observing, photographing, recording,
      amplifying or broadcasting sounds or events in that place.

Strong pleaded not guilty to all of the charges, and the court ordered that the

parties file pretrial motions by December 6, 2012.

      [¶3] On January 22, 2013, the first day of jury selection, Strong moved,

pursuant to M.R. Crim. P. 12(b), to dismiss the forty-six counts of the indictment

involving charges of violation of privacy. Two days later, and while jury selection

was still in progress, the court held a hearing on the motion. At the hearing, Strong

argued that the crime of violation of privacy, 17-A M.R.S. § 511(1)(B), does not

occur if the alleged victim is engaged in criminal activity at the time of the

violation of privacy. Specifically, Strong contended that an alleged victim who is,

at the time of the alleged violation of privacy, engaging a prostitute in violation of
                                                                                    3

17-A M.R.S. § 853-B (2012), on premises controlled by the prostitute, is not a

“person . . . entitled to privacy” in a “private place” as those terms are used in

section 511(1)(B). The State countered that the statute protects the privacy rights

of victims, whether or not they are engaged in illegal activity.

      [¶4] The court then inquired whether all of the affected counts of the

indictment concern the same activity and, specifically, whether there was “any

other purpose” for each alleged victim to have been at the alleged prostitute’s

“place of business.” In response, the State made an offer of proof to establish that

the key facts underlying the privacy counts demonstrated that the alleged victims

were “persons entitled to privacy” in a “private place,” as required by section

511(1)(B).

      [¶5] In its offer of proof, the State represented that the alleged prostitute

with whom Strong cooperated and conspired had engaged in sex for money with

the victims in three locations:

      It first starts out at [the alleged prostitute’s] residence. And then there
      is a larger studio, where the windows are covered. And there is a third
      situation where there is, like, a two-room business suite that [the
      alleged prostitute] has rented on a second floor, that she has to unlock
      the door for people to come in and then lock the door when they come
      in. They arrive. Essentially, the door is locked. . . . [O]n the ground
      floor, the windows were covered so people couldn’t see in. And then
      when they were on the second floor, the windows weren’t covered but
      people couldn’t see in because they were on the second floor.
4

The State also represented that the victims went to these locations for the sole

purpose of engaging a prostitute, and were with the alleged prostitute for “usually

anywhere from 30 minutes up to several hours.” Further, “some went one or two

times; some went many, many, many times.”

        [¶6] The court granted Strong’s motion and dismissed the privacy counts,

concluding that based on the indictment and the State’s offer of proof, the State

could not prove the crimes as alleged. After a recess, the State moved the court to

reconsider its dismissal, arguing, for the first time, that Strong’s motion was not

timely.    The court denied the motion to reconsider, and the State filed this

interlocutory appeal pursuant to 15 M.R.S. § 2115-A(1) (2012) and M.R. App.

P. 21. Strong immediately filed in this Court a motion to dismiss the appeal, which

we denied, and to expedite the appeal, which we granted.

                                 II. DISCUSSION

        [¶7] We consider two questions: (A) whether we should reconsider our

denial of Strong’s motion to dismiss this interlocutory appeal, and (B) whether the

court erred in dismissing the privacy counts of the indictment. We address each in

turn.

A.      Interlocutory Appeal

        [¶8] Title 15 M.R.S. § 2115-A(1) permits the State to bring certain pretrial

interlocutory appeals on questions of law, including an appeal
                                                                                  5

      from a pretrial dismissal of an indictment, information or complaint;
      or from any other order of the court prior to trial which, either under
      the particular circumstances of the case or generally for the type of
      order in question, has a reasonable likelihood of causing either serious
      impairment to or termination of the prosecution.

When determining whether to exercise this jurisdiction, we “consider whether

under all the circumstances the lower court’s ruling has produced a significant

setback to the State’s attempt to bring the accused to justice.” State v. Drown,

447 A.2d 466, 470-71 (Me. 1982); see also State v. Brackett, 2000 ME 54, ¶¶ 6-7,

754 A.2d 337.

      [¶9] Here, the circumstances of the court’s dismissal of the forty-six privacy

counts present a reasonable likelihood that the State’s prosecution of Strong has

been seriously impaired. The dismissed privacy counts constitute the majority of

the criminal counts brought against Strong. They allege criminal activity that is

wholly separate from and not customarily associated with the remaining counts

alleging crimes of promotion of prostitution. See 17-A M.R.S. §§ 151(1)(E), 853.

Further, the legal basis for the dismissal presents a question of great public

importance because it involves a criminal statute forbidding, among other things,

video surveillance—a phenomenon that is lawful in many situations and

increasingly common in modern society. Under these circumstances, the exercise

of our authority to consider this interlocutory appeal pursuant to 15 M.R.S.
6

§ 2115-A(1) is warranted and we decline to reconsider our earlier denial of

Strong’s motion to dismiss the State’s appeal. See Drown, 447 A.2d at 470-71.

B.    Dismissal of the Counts Charging Violation of Privacy

      [¶10] The State contends that the court erred in dismissing the privacy

counts because (1) Strong’s motion was untimely, and (2) the indictment

adequately charges a crime pursuant to 17-A M.R.S. § 511(1)(B).

      1.    Timeliness

      [¶11] The State failed to raise its timeliness objection until after the court

had heard and granted the motion to dismiss, and thus it has failed to preserve the

issue for appellate review. See State v. Dolloff, 2012 ME 130, ¶ 39 n.11, ---

A.3d --- (stating that “an objection must be made within a reasonable time of the

offending [action] to be preserved”); see also M.R. Crim. P. 12(b)(2).

      2.    Adequacy of the Indictment

      [¶12] “[A]n indictment is subject to dismissal for failure to state an offense

only when the facts alleged on its face fail to make out an offense against the

State,” which strips the court of jurisdiction to try the accused. State v. Storer,

583 A.2d 1016, 1020-21 (Me. 1990). Although the State has not objected to it

here, we have consistently rejected the practice of considering facts not alleged on

the face of an indictment in determining whether the indictment charges an

offense. See, e.g., id. at 1021; see also 1 Cluchey & Seitzinger, Maine Criminal
                                                                                   7

Practice § 12.1 at IV-57 (Gardner ed. 1995).         Some courts, however, have

recognized a narrow exception to this rule in the “unusual circumstance” in which

the motion presents a question of law, the material facts are not in dispute, and the

prosecution does not object to the court’s consideration of those facts. United

States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (quotation marks omitted); see

also United States v. Flores, 404 F.3d 320, 324-25 (5th Cir. 2005).

      [¶13]    This case presents just such an “unusual circumstance.”           The

challenge raised is a question of law, the proffered facts are not in dispute, and,

most important, the State did not oppose the court’s consideration of those facts.

Moreover, the basis for the court’s inquiry into the underlying facts is evident: the

indictment provided no specific information regarding the alleged crimes.          It

omitted the names of the alleged victims; offered no description of the places at

which the alleged violations of privacy took place; and did not allege that those

places were, as the statute requires, places in which a person “may reasonably

expect to be safe from surveillance, including, but not limited to, changing or

dressing rooms, bathrooms and similar places.” 17-A M.R.S. § 511(2) (2012); see

also 17-A M.R.S. § 32 (2012) (providing that the elements of a crime include all

“attendant circumstances”); Drown, 447 A.2d at 470 (observing that the indictment

should “be sufficiently specific that it enables [a] defendant to prepare his defense

and protects him against further jeopardy for the same offense”). Although we
8

reemphasize the rule that courts should not look beyond the four corners of an

indictment to determine whether it charges a crime, based on the highly unusual

circumstances presented here, the trial court acted well within the bounds of its

discretion in evaluating the adequacy of the indictment as augmented by the State’s

offer of proof. See Yakou, 428 F.3d at 247.

      [¶14] We next turn to the plain language of the statute. See State v.

Paradis, 2010 ME 141, ¶ 5, 10 A.3d 695 (per curiam). Our review of the proper

construction of the statute is de novo. See State v. Jones, 2012 ME 88, ¶ 6,

46 A.3d 1125. Section 511(1)(B) provides,

      A person is guilty of violation of privacy if . . . that person
      intentionally . . . [i]nstalls or uses in a private place without the
      consent of the person or persons entitled to privacy in that place, any
      device for observing, photographing, recording, amplifying or
      broadcasting sounds or events in that place.

17-A M.R.S. § 511(1)(B). Section 511 specifically defines a “private place” as “a

place where one may reasonably expect to be safe from surveillance, including, but

not limited to, changing or dressing rooms, bathrooms and similar places.” Id.

§ 511(2).

      [¶15] The State contends that section 511(1)(B) extends to any place in

which a person disrobes in private, regardless of whether that person is engaging in
                                                                                                           9

criminal conduct at the time.1 In contrast, Strong contends that persons engaged in

criminal activity have no reasonable expectation to be safe from surveillance, and

therefore that section 511(1)(B) does not encompass persons who are engaging a

prostitute in violation of 17-A M.R.S. § 853-B. Because the statute is reasonably

susceptible to more than one construction, it is ambiguous and we turn to its

legislative history for guidance.2 See Carrier v. Sec’y of State, 2012 ME 142, ¶ 12,

--- A.3d ---; Paradis, 2010 ME 141, ¶ 5, 10 A.3d 695.

         [¶16] When first enacted in 1976, section 511 defined a “private place” to

mean “a place where one may reasonably expect to be safe from surveillance but

does not include a place to which the public or a substantial group has access.”

P.L. 1975, ch. 499, § 1. The comment immediately following the text of the bill as

enacted states that the provision was intended “to prevent [the] seeing or hearing of

     1
       Although the State urges us to construe 17-A M.R.S. § 511(1)(B) (2012) in light of the Fourth
Amendment jurisprudence addressing unreasonable searches and seizures, that body of law provides little
guidance. Nowhere in section 511 is there any indication that the Legislature intended to make the rights
protected by the statute coextensive with the rights protected by the Fourth Amendment. In addition,
there is no logical correlation between the Fourth Amendment and the circumstances addressed by section
511, when, for example, many persons who could expect to be safe from surveillance within the meaning
of the statute might nonetheless lack standing to assert Fourth Amendment rights. See State v. Filion,
2009 ME 23, ¶ 13, 966 A.2d 405 (observing that a defendant who asserts a violation of the Fourth
Amendment occurring at a location belonging to or controlled by a third person must demonstrate that he
or she had a reasonable expectation of privacy based on several factors, including the defendant’s
possession, ownership, or prior use of the property; the legitimacy of the defendant’s presence on the
property; the defendant’s ability to exclude others from the property; the defendant’s access to the
property if owned by another who is not present; and the defendant’s subjective expectation of privacy).
 2
    Section 511(1)(B)’s description of the conduct it prohibits is less specific than are similar statutes in
other jurisdictions. See, e.g., 720 Ill. Comp. Stat. Ann. 5/26-4 (LEXIS through Pub. Act 97-1163 except
Pub. Act 97-1150 of the 2012 Legis. Sess.); N.H. Rev. Stat. Ann. § 644:9 (LEXIS through Ch. 290 of
2012 Legis. Sess.); N.Y. Penal Law §§ 250.40, 250.45 (LEXIS through 2012 released chapters 1-505).
10

things that are justifiably expected to be kept private.” 17-A M.R.S.A. § 511 cmt.

(2006) (emphasis added). Through amendments in 1999 and 2008, the Legislature

revised the definition of “private place” by removing the language excluding “a

place to which the public or a substantial group has access” and adding the

language, “including, but not limited to, changing or dressing rooms, bathrooms

and similar places.” See P.L. 2007, ch. 688, § 2; P.L. 1999, ch. 116, § 1.

      [¶17]   Thus, the Legislature’s overall purpose in criminalizing certain

violations of privacy cannot be understood as an effort to broadly protect

individuals’ subjective expectations of privacy. The purpose is more focused,

requiring that certain objective factors be present as well. The place involved must

be “a place where one may reasonably expect to be safe from surveillance.”

17-A M.R.S. § 511(2) (emphasis added). Further, a person’s desire to keep private

what transpires within that place must be a justifiable expectation, and, therefore,

objectively reasonable. See 17-A M.R.S.A. § 511 cmt. (2006).

      [¶18] Applying these standards to the unique facts delimited by the counts

of the indictment as augmented by the State’s offer of proof, the persons who

entered and disrobed in the places described in the offer of proof—a residence,

studio, and business office where a prostitute conducted her business—may have
                                                                                                       11

held a subjective expectation of privacy.3 Nevertheless, they cannot qualify as

“persons entitled to privacy” in those places for purposes of the objective

requirements of section 511(1)(B) because, as established by the State’s offer of

proof, their sole purpose for being present in those places was to engage a

prostitute. Places of prostitution and people who knowingly frequent them to

engage a prostitute are not sanctioned by society. Accordingly, it is objectively

unreasonable for a person who knowingly enters a place of prostitution for the

purpose of engaging a prostitute to expect that society recognizes a right to be safe

from surveillance while inside.4

        [¶19] Because the relevant counts of the indictment, as augmented by the

State’s offer of proof, failed to adequately charge the offense of violation of

privacy, the court properly granted Strong’s motion to dismiss.

        The entry is:

                        Judgment dismissing counts 3, 5, 6, 7, 9, 10, 11,
                        12, 13, 15, 16, 17, 18, 20, 21, 22, 23, 25, 26, 27,
                        28, 29, 31, 32, 33, 34, 36, 37, 38, 39, 40, 42, 43,
                        44, 45, 47, 48, 49, 50, 52, 53, 54, 55, 57, 58, and

   3
      The State’s offer of proof did not address whether any of the unidentified persons who are the
alleged victims of the privacy counts knew or had reason to know that they might be subject to
surveillance while with the prostitute. We have assumed for purposes of our analysis that none did.
   4
       Having reached this conclusion, we need go no further. We therefore do not decide whether, as
Strong contends, a violation of section 511(1)(B) can never be committed if a person otherwise entitled to
privacy is engaged in criminal activity at the time of the privacy violation. Nor do we address the
parameters of the right to privacy outside the bounds of section 511(1)(B) and the unique circumstances
of this case.
12

                           59 is affirmed.     Case remanded for further
                           proceedings consistent with this opinion.



On the briefs:

        Kathryn L. Slattery, District Attorney, Justina A. McGettigan, Dep. Dist.
        Atty., and Patrick H. Gordon, Asst. Dist. Atty., for appellant State of Maine.

        Daniel G. Lilley, Esq., and Tina Heather Nadeau, Esq., Daniel G. Lilley Law
        Offices, P.A., Portland, for appellee Mark W. Strong Sr.

        Sarah A. Churchill, Esq., Nichols & Webb, P.A., Saco, for amicus curiae
        Alexis Wright.


At oral argument:

        Patrick H. Gordon, Asst. Dist. Atty., for appellant State of Maine.

        Daniel G. Lilley, Esq., for appellee Mark W. Strong Sr.



York County Superior Court docket number CR-2012-2049
FOR CLERK REFERENCE ONLY
